‘Troublemaker' Kozinski Unafraid to Advocate for Change

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By Jessica DaSilva

Dec. 4 — Judge Alex Kozinski is perhaps best known for his penchant for controversial statements and penning sharp-witted opinions for the U.S. Court of Appeals for the Ninth Circuit.

As recently as Nov. 29, he told “60 Minutes” that if the U.S. wishes to continue administering capital punishment, it should return to more reliable methods, such as a firing squad or the guillotine.

Kozinski reiterated a point from a previous dissent in which he wrote, “Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all.”

That case was Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014).

Yet Kozinski's trademark flair and gusto for challenging government action in the criminal justice system can be seen as early as 1993—not even 10 years after his appointment by President Ronald Reagan

Kozinski spoke with Bloomberg BNA about his personal journey on the bench, giving insight into the motivations behind his reputation for making legal waves—a reputation recently receiving a boost when the judge penned an article questioning the methods of federal prosecutors that elicited a direct response from two Department of Justice attorneys (see related story this issue).

Wield ‘Awesome Power.'

“The overwhelming majority of prosecutors are decent, ethical, honorable lawyers who understand the awesome power they wield, and the responsibility that goes with it,” Kozinski wrote in his majority opinion in United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993). “But the temptation is always there: It's the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor's job is simply to win.”

When Kozinski wrote the Kojayan opinion in 1993, the war on drugs had nearly reached its pinnacle, said Timothy O'Toole, a member at Miller & Chevalier in Washington and co-chair for the National Association of Criminal Defense Lawyers' Discovery Reform Taskforce. The decision also coincided with state and federal governments instituting the mandatory minimum sentences that have come under fire in today's debates over criminal justice reform.

Kozinski's willingness not only to question the government, but to refuse placing the prosecution on a pedestal differentiates him from many federal judges, O'Toole said.

“He has a really good memory about what happened before and not becoming distracted by a series of one-offs,” O'Toole explained. “He sees it more as a systemic problem than others.”

Just a ‘Troublemaker.'

O'Toole said he closely followed Kozinski's work over the course of his own career, and it seemed to him that Kozinski underwent a long-time transformation that fell in line with his libertarian roots but pushed him further into the role of an advocate.

Kozinski disagreed.

“I think I've always been this way,” Kozinski told Bloomberg BNA in a Dec. 1 phone interview. “I'm probably just more of a troublemaker.”

A ‘Startling Difference.'

While Kozinski said it was hard to say what most influenced his tendency to question governmental power, he attributed that “healthy mistrust” to a childhood spent under a totalitarian regime.

Born the child of two Jewish, Holocaust survivors in Romania, Kozinski said he appreciated the U.S. system of checks and balances that his home country lacked.

Until 12 years old, Kozinski said he grew up hearing stories about his parents' experiences in ghettos and concentration camps. He gained his own experience living in a system of unchecked government oversight.

“I've seen people hauled away by the police,” he said. “I've seen people afraid to speak up about the government.”

Moving to the U.S. was a “startling difference” that solidified for him the importance of governmental balance, he said.

He carried his appreciation for governmental oversight with him to the Ninth Circuit after Reagan appointed him in 1985 when Kozinski was only 35 years old.

The Importance of Teaching Lessons

In his years on the bench, Kozinski said he continually recalls a saying his mother would repeat to him: “He who is kind to the cruel is cruel to the kind.”

Oftentimes, Kozinski said judges believe they should remain conservative in their personal ways, rather than using their decisions as a platform for advancing a cause or changing the system.

“That's not my view at all,” he said. “Part of our job is to make the system better.”

Opinions provide a unique opportunity to teach lessons because criminal law practitioners must take the writings seriously.

He said this is especially true for prosecutorial misconduct—an issue for which he gathered notoriety among criminal justice policy makers, including members of Congress, advocates and practitioners.

“A lot of times we overlook things we ought to be saying,” Kozinski said of judges' tendencies not to confront prosecutors. “If we just let them pass unspoken, we have, in effect, given support.”

Kozinski has been anything but silent.

The ‘Epidemic of Brady Violations.'

In the summer of 2015 he caused an uproar over a preface he wrote in the Georgetown Law Journal on Criminal Procedure. The article, “Criminal Law 2.0,” detailed a comprehensive criminal justice reform plan spanning more than 40 pages, including 12 pointed criticisms and 26 specific ideas for reform.

One of those criticisms was that prosecutors too frequently fail to disclose potentially exculpatory evidence to the defense—known as a Brady violation—because they can become overly focused on winning a case to further their careers, rather than administering justice.

But Kozinski didn't set out to provoke controversy. When the journal first asked him to write the preface, he expected to author something more benign.

“I can write five or six pages of fluff,” he said he initially thought. “Once I started typing, it just sort of came off my keyboard. I couldn't stop.”

Although only two criticisms and eight of his reform ideas focused on prosecutors, it struck a nerve in the criminal justice system—especially with federal prosecutors who responded in a published letter on Nov. 5.

The letter questioned Kozinski's statistics on prosecutorial misconduct among federal prosecutors and reiterated the Department of Justice's commitment to fairness and justice.

Kozinski couched his criticism behind the statement that “most prosecutors are fair and honest.” However, he presented evidence maintaining the widely quoted line from his dissent from the denial of rehearing en banc in United States v. Olsen, 737 F.3d 625 (9th Cir. rehearing denied 2013), that “there is an epidemic of Brady violations in the land.”

That sentiment is partially a gut feeling, he said. Yet the slow growth in uncovered violations over the course of his tenure led him to believe a widespread, systemic problem existed.

“A really successful Brady violation is never a scandal,” he said.

If a prosecutor fails to properly disclose evidence and does so well, it might never come to light, he explained. This is especially true for plea negotiations because cases are rarely reviewed once defendants strike deals with the government.

Under Fire From Colleagues

In the aftermath of both his Olsen dissent and law journal article, Kozinski said many of his colleagues criticized him for using the term “epidemic,” highlighting that he only cited 30 cases of prosecutorial misconduct to support his claim.

“I could have cited 300 cases, easily,” Kozinski said. “I just didn't have the time.”

After calling prosecutorial misconduct a sickness in the criminal justice system, he compared to it to a physical disease. If the same number of prosecutorial misconduct cases were actually cases of citizens diagnosed with Ebola or Legionnaire's disease, Kozinski said people might find the numbers more meaningful.

“How many people have to die for something to be called an epidemic?” he asked, regarding wrongful convictions and executions. “All I know is there are far too many.”

The best result to come from his opinions and article, Kozinski said, is the increased bipartisan awareness on the need for reform. After speaking on a panel with Sen. Mike Lee (R-Utah) (98 CrL 124, 11/4/15), Kozinski said he was pleased to know that criminal justice reform is no longer solely a liberal issue.

What Kozinski does is not unique, Miller & Chevalier's O'Toole said. Other judges challenge prosecutorial misconduct and trumpet criminal justice reform, but he said Kozinski goes out of his way to link individual occurrences and see them as a systemic problem.

While Kozinski said he doesn't know why his words resonate in a way that other judges' do not, he guessed it might be his writing style.

“I go out of my way to express things in a provocative way,” he said.

By the Book

The most salient point for people to understand about Kozinski, though, is his commitment to procedure.

“The next time I get a case and the prosecution does it right, I'll have no hesitation in affirming that conviction,” he stated. “If you do it by the book, you will have my vote.”

That comment pleased John F. Walsh, U.S. Attorney for the District of Colorado who co-authored the response letter to Kozinski's article.

Walsh told Bloomberg BNA on Dec. 2 it was wonderful that Kozinski stood by his statement that most prosecutors are committed to ethics and justice. Having a civil discourse can only lead to a better criminal justice system, he said.

As for Kozinski, he maintained he will continue confronting any kind of wrongdoing he sees in the criminal justice system and holding responsible parties accountable.

“Life tenure is a wonderful thing,” he said.

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com