blind insight: Reopening an old wound.

Somehow, I managed to find the post I originally drafted in response to Emily Bazelon's piece about Judge Kozinski. Here's most of it below. I apologize for the redundancy, but my friend Dawn and I were discussing Kozinski's reprehensible hypocrisy (and cavalier attitude towards human life) at lunch today, so this stuff was still on my mind.
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Anyone with knowledge of the Ninth Circuit U.S. Court of Appeals and a sense of my political leanings will not be surprised to hear that I'm no great fan of Judge Alex Kozinski. Nevertheless, I read with great interest this thorough and rather balanced profile by Emily Bazelon, which will appear in print in the January/February '04 issue of Legal Affairs.

If you don't have time or interest to read the whole piece, you should at least read the section, relatively early on, in which Bazelon discusses the Thomas Thompson death penalty case, and Kozinski's role in sending Thompson to his death. I was clerking for Judge Betty B. Fletcher when we discovered the communication error that appeared to foreclose rehearing en banc (by the full court) in Thompson's appeal. And, as we pressed for a recall of the mandate and en banc rehearing in the days before Thompson's scheduled execution, I was the law clerk responsible for the case in Judge Fletcher's chambers. Ultimately, Judge Fletcher authored the majority en banc decision, finding Thompson's trial unfair, overturning the three-judge panel decision to the contrary, and granting Thompson habeas corpus relief.

Most of what went on during those harrowing days must remain behind the doors of the judge's chambers. But much of the internal workings (and failings) of the Ninth Circuit as it wrestled with Thompson's case was aired in Judge Kozinski's dissent, Judge Reinhardt's concurrence, and Judge Reinhardt's later law review article about the case. [For you lawyer types, the opinions can be found at 120 F.3d 1045 (9th Cir. 1997) (en banc).] And Bazelon's piece provides a pretty accurate (albeit mostly from Judge Kozinski's standpoint) overview of what was perhaps the most intense and important period of my clerkship.

From the time Judge Fletcher and I arrived in San Francisco before the en banc oral argument until I flew to Colorado the day after the decision to look for a post-clerkship apartment in Denver, I don't think I slept more than a couple of hours. This was in early August of 1997, and the American Bar Association happened to be holding its annual meeting in San Francisco during the week of the argument, so the en banc courtroom at the stunning Ninth Circuit courthouse was packed. Even the law clerks were relegated to watching the argument on closed-circuit television in an adjacent courtroom (and because of the throngs of ABAers in town, neither Judge Fletcher nor I could get a hotel room in the city, adding to the stress and chaos of the week).

Once the arguments were over and the judges had conferred, Judge Fletcher and I began crafting the opinion, madly writing, researching, editing, and conferring with other judges and clerks. As I recall, the argument took place less than two days before the scheduled execution, so we were racing against the clock to prepare an opinion that addressed the many complex legal questions before the court, satisfied a majority of the judges on the en banc panel, and met Judge Fletcher's rigorous standards for judicial writing. Finally, on the morning before the execution date (it was to take place at midnight that night), the opinion issued, along with Judge Kozinski's scathing dissent, which (as I recall Judge Reinhardt pointed out in concurrence) displayed a shocking disregard for the value of a human life relative to that of "the judicial process." Other dissenting judges railed on about the "facts" of Thompson's case, ignoring extensive contradictory evidence and the grave constitutional errors that occurred in Thompson's trial, which had prompted seven former California prosecutors to file an amicus brief on Thompson's behalf.

Once the opinion was out and the dust settled, I went down to the gym in the courthouse basement to burn off some nervous energy. I was still on the treadmill when Judge Fletcher came to tell me that the Supreme Court had granted certiorari. But rather than reversing the Ninth Circuit outright, vacating its decision, and allowing the execution to go forward at midnight that night, the Court had set the case for briefing and argument in the upcoming term. For the moment, at least, Tommy Thompson would live.

Just a few months later, after I'd returned to Colorado and started practicing law "for real," the Supreme Court reversed our decision and held that the Ninth Circuit lacked the power to rehear the case at the time and under the procedural circumstances that it had. Echoing Judge Kozinski's view, the Court effectively held that the grave constitutional errors leading to Thompson's conviction and death sentence were subordinate to the judicial process, and that the successive habeas petition bar of the 1996 Antiterrorism and Effective Death Penalty Act of 1996 precluded consideration of those errors and of the likelihood that Thompson was not guilty of a death-eligible offense.

As I recall, the case went back to the district court, then again reached the Ninth Circuit, and was eventually reheard again by an en banc court, which was constrained to deny Thompson habeas corpus relief. Thompson was executed soon thereafter.

Judge Fletcher is one of the smartest and most conscientious jurists ever to sit on the federal bench. While certain members of Congress (or the courts) might disagree, she takes exceptional care to remain true to the law in her jurisprudence. But at the same time, she understands only too well the importance of ensuring that if the death penalty is to exist at all, the punishment must not be carried out where it has been imposed in an unfair proceeding, or where any doubt exists as to the condemned man's guilt of a death-eligible offense.

Judge Kozinski may be content to let "formalism" guide his judicial decision-making. But I was proud to clerk for a judge who was willing to set aside procedural niceties and devote endless hours in an attempt to find a way to stop an unfairly-convicted man from being executed.