Thanks (?) for the memories.

Oy vey.

I just drafted a long entry in reaction to this profile of Ninth Circuit Judge Alex Kozinski, and somehow my computer ate the whole damn thing. I don't have the energy to redraft the entire post again, but basically I was reminiscing about my personal experience on the Thomas Thompson death penalty case, which is discussed in some detail in the linked article. Even if you don't have the time or interest to read the whole Kozinski article, that portion of it (relatively near the beginning) is worth reading.

I was clerking for Judge Betty Fletcher at the time. Following an unprecedented and distressing sequence of miscommunications, the Ninth Circuit voted at the eleventh hour to rehear Thompson's appeal en banc, Judge Fletcher was assigned to the en banc panel, and I had the privilege of being her law clerk on the case. When we finally issued the en banc opinion (authored by Judge Fletcher) granting habeas relief to Thompson and staying his execution just hours before it was to take place, I'd been writing, researching, and conferring with judges and clerks for days on end. I remember going downstairs to the gym in the Ninth Circuit courthouse to burn off some of the residual adrenaline, and still being on the stairmaster when Judge Fletcher came in to tell me the Supreme Court had granted certiorari.

Rather than simply vacating the Ninth Circuit decision and allowing the execution to go forward at midnight that night, the Court set the case for oral argument. The Court then took advantage of a handily-presented opportunity to slap down the rebellious Ninth Circuit, and ultimately issued this ruling (go to page 662 of the linked volume). In essence, the Supremes, like Judge Kozinski in his horrifying dissent, decided that the grave constitutional errors at Thompson's trial were subordinate to the proper functioning of the "judicial process." As Judge Kozinski suggested, maybe next time the courts would get it right. And so, in the spring of 1998, Thomas Thompson was put to death by the State of California, though he likely was innocent of any death-eligible crime.

The Thompson case was the most intense and, at the time, satisfying experience of my wonderful clerkship. When we finished the en banc opinion and secured the votes of a majority of the panel judges, I truly felt that I had done my part to prevent a wrongful execution (are there any rightful ones?) and to protect individual liberties. But looking back, I realize that I've been pretty much Oh-for-April in my death cases since then.