Kozinski, again

Kozinski is known for being unconventional, quirky, and provocative in his opinions. The way he writes is outside of the box many judges and lawyers have limited themselves to. A perfect example is his dissenting opinion in a 2004 case. He begins with a hypothetical script between the defendant and his lawyer in the case being decided:

"One can only imagine the conversation between Ramirez-Lopez and his lawyer after this opinion is filed:

Lawyer:  Juan, I have good news and bad news.

Ramirez-Lopez:  OK, I'm ready.   Give me the bad news first.

Lawyer:  The bad news is that the Ninth Circuit affirmed your conviction and you're going to spend many years in federal prison.

Ramirez-Lopez:  Oh, man, that's terrible.   I'm so disappointed.   But you said there's good news too, right?

Lawyer:  Yes, excellent news!   I'm very excited.

Ramirez-Lopez:  OK, I'm ready for some good news, let me have it.

Lawyer:  Well, here it goes:  You'll be happy to know that you had a perfect trial.   They got you fair and square!

Ramirez-Lopez:  How can that be?   Didn't they keep me in jail for two days without letting me see a judge or a lawyer?   Weren't they supposed to take me before a judge right away?

Lawyer:  Yes, they sure were.   But it's OK because you didn't show that it harmed you.   We have a saying here in America:  No harm, no foul.

Ramirez-Lopez:  What do you mean no harm?   There were twelve guys in my party who said I wasn't the guide, and they sent nine of them back to Mexico.

Lawyer:  Yeah, but so what?   Seeing the judge sooner wouldn't have helped you.

Ramirez-Lopez:  The judge could have given me a lawyer and my lawyer could have talked to those guys before the Migra sent them back.

Lawyer:  What difference would that have made?

Ramirez-Lopez:  My lawyer could have taken notes, figured out which guys to keep here and which ones to send back.

Lawyer:  Hey, not to worry, dude.   The government did it all for you.   They talked to everyone, they took notes and they kept the witnesses that would best help your case.   Making sure you had a fair trial was their number one priority.

Ramirez-Lopez:  No kidding, man.   They did all that for me?

Lawyer:  They sure did.   Is this a great country or what?

Ramirez-Lopez:  OK, I see it now, but there's one thing that still confuses me.

Lawyer:  What's that, Juan?

Ramirez-Lopez:  You see, the government took all those great notes to help me, just so we'd know what all those guys said.

Lawyer:  Right, I saw them, and they were very good notes.   Clear, specific, detailed.   Good grammar and syntax.   All told, I'd say those were some great notes.

Ramirez-Lopez:  And twelve of those guys all said I wasn't the guide.

Lawyer:  Absolutely!   Our government never hides the ball.   The government of Iraq or Afghanistan or one of those places might do this, but not ours.   If twelve guys said you weren't the guide, everybody knows about it.

Ramirez-Lopez:  Except the jury.   I was there at the trial, and I remember the jury never saw the notes.   And the officers who testified never told the jury that twelve of the fourteen guys that were with me said I wasn't the guide.

Lawyer:  Right.

Ramirez-Lopez:  Isn't the jury supposed to have all the facts?

Lawyer:  Not all the facts.   Some facts are cumulative, others are hearsay.   Some facts are both cumulative and hearsay.

Ramirez-Lopez:  Can you say that in plain English?

Lawyer:  No.

Ramirez-Lopez:  The jury was supposed to decide whether I was the guide or not, right?   Don't you think they might have had a reasonable doubt if they'd heard that twelve of the fourteen guys in my party said it wasn't me?

Lawyer:  He-he-he!   You'd think that only if you didn't go to law school.   Lawyers and judges know better.   It makes no difference at all to the jury whether one witness says it or a dozen witnesses say it.   In fact, if you put on too many witnesses, they might get mad at you and send you to prison just for wasting their time.   So the government did you a big favor by removing those nine witnesses before they could screw up your case.

Ramirez-Lopez:  I see what you mean.   But how about the notes?   Surely the jury would have gotten a different picture if they had just seen the notes of nine guys saying I wasn't the guide.   That wouldn't have taken too long.

Lawyer:  Wrong again, Juan! Those notes were hearsay and in this country we don't admit hearsay.

Ramirez-Lopez:  How come?

Lawyer:  The guys writing down what the witnesses said could have made a mistake.

Ramirez-Lopez:  You mean, like maybe one of those twelve guys said, “Juan was the guide,” and the guy from Immigration made a mistake and wrote down, “Juan was not the guide”?

Lawyer:  Exactly.

Ramirez-Lopez:  You're right again, it probably happened just that way.   I bet those guys from Immigration wrote down, “Juan wasn't the guide,” even when the witnesses said loud and clear I was the guide-just to be extra fair to me.

Lawyer:  Absolutely, that's the kind of guys they are.

Ramirez-Lopez:  You're very lucky to be working with guys like that.

Lawyer:  Amen to that.   I thank my lucky stars every Sunday in church.

Ramirez-Lopez:  I feel a lot better now that you've explained it to me.   This is really a pretty good system you have here.   What do you call it?

Lawyer:  Due process.   We're very proud of it."

* * *

IMG_0863.JPG