Justice for Joni
posted by Dan Filler
Orin Kerr has a great post about a habeas opinion authored by Judge Kosinski on the Ninth Circuit. I’ll leave out the fine detais – which are hammered and hammered and hammered out in some of the better blog comments I’ve seen – but the basic idea is this. A woman named Joni Goldyn wrote five checks on an empty account that was backed by a check guarantee card issued by the bank. Under Nevada’s reading of their Drawing and Passing Checks with Insufficient Funds on Deposit statute, that was a crime. Since she had previously been convicted of three felonies and one gross misdemeanor, all related to fraud, she got five life sentences. After twelve years in prison, she was paroled. The court found that she had been convicted for an act that was not illegal. The debate over at House-o-Volokh is whether Kosinski had to fudge the law to grant the writ of habeas corpus. The court’s most controversial move was its decision to interpret a statute according to its plain text, ignoring a state Supreme Court decision taking a different position on the statute’s meaning.
The problem in the habeas context is two-fold. First, federal courts are typically not in a position to give meaning to a statute contrary to that already provided by a state court. Second, a federal court can only grant a writ where federal law has been violated. Kosinski made the case for granting the writ, but as the discussion in Orin’s post and comments shows, it was a fairly activist move. I don’t think many people would have predicted that a court – even the generous Ninth Circuit – would grant the writ.
For me, though, this case set me wondering what sort of person would get such active assistance in habeas, from Judge Kosinski no less. Our petitioner here was a woman with a gambling problem, according to press accounts. She was clearly involved in misconduct – essentially, she defrauded the bank. She served 12 years, but had been paroled several years ago. The offender wasn’t an innocent nor was she still in prison. The case was in a habeas posture. This matter simply did not scream out for active intervention. So why did the court do it?
Perhaps it was an easy call…except that the discussion over at Volokh suggests the opposite. Perhaps the judge is a raging liberal, always looking to overrule an overzealous state court…uhh, wrong judge. Was it because the case involved what many people would see as wildly excessive sentencing for a minor offense (though the decision did not go off on that issue)? Was it because the case involved a woman? (Was she white, and if so, did that matter?) Was it because it involved a woman with a gambling addiction rather than, say, a crack addiction?
I suspect that few federal courts would have worked this hard to recraft state law on behalf of a person who killed somebody. I doubt many courts would work so vigorously to free a person whose criminal conduct was related to a drug addiction. (Powder cocaine, maybe; crack, no.) And, yes, I think the case might have gone differently if it had involved a Tayshaun Abu-Jamal rather than Joni Goldyn. I’m not accusing Kosinski or his mates of being explicitly racist or sexist. It’s just that I’ve spent enough time involved in criminal cases to know that outcomes are frequently shaped by non-statutory factors. And that leaves me a bit suspicious here.
In any case, the story played well in Russia, Exhibit 1 for the claim that the U.S. is as lawless as the next superpower. The Pravda headline reads: “Court says U.S. woman imprisoned for 12 years committed no crime.”
February 4, 2006 at 12:06 am
Posted in: Criminal Law
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Responses (4)
Maryland Conservatarian - February 5, 2006 at 4:04 am
“And that leaves me a bit suspicious here.”
What a coincidence – after reading Professor Filler’s posting, I, too, was suspicious: would Professor Filler have laid out a similar posting of baseless innuendoes if the judge’s name instead had been, say, Judge Stephen Reinhardt…or if the plaintiff had in fact been a crack addict named Osama bin Hamdan.
Professor Filler seemingly inoculates himself with a meaningless declaration of “I’m not accusing Kosinski or his mates of being explicitly racist or sexist”. Thanks for clearing that one up! I mean, after reading about a WOMAN of unknown ethnicity or race winning in federal circuit court after spending twelve years in jail – well, who wouldn’t initiallty think that such a ruling could only come from some rascist, sexist neanderthal.
Perhaps if Judge Kosinski had merely wrapped his opinion around some kind of social policy-making (i.e. tied her conviction to a gambling addiction) – maybe then Professor Filler would have been a bit more understanding, if not downright effusove with praise…but, no, instead Judge Kosinski made a “”most controversial move”; he decided “to interpret a statute according to its plain text”.
Now, I’m not accusing Professor Filler of being explicitly a liberal law professor out to impugn a judge he doesn’t agree with. It’s just that I’ve spent enough time around liberals to know that, when it comes to judges considered not to be connected to their inner William Kunstlers, well, anything goes. And that leaves me a bit suspicious here.
Plainsman - February 5, 2006 at 6:36 pm
The stuff in the post about how even Judge Kozinski (note correct spelling) granted this petitioner relief is discordant. To the contrary, Judge Kozinski has a long-standing reputation for being more libertarian and more pro-criminal-defendant than the average Reagan appointee. Kozinski often gets steamed at what he perceives as injustices committed by the government in criminal cases.
A memorable recent example is his dissent in U.S. v. Ramirez-Lopez (9th Cir. 2003), which was so cutting the government decided to drop the prosecution, despite having prevailed in the Ninth Circuit, and the panel majority withdrew their opinion!
In light of what the prior comment accurately terms the “baseless innuendoes” thrown around in the post, let me note that Ramirez-Lopez, the defendant whose railroading at trial summoned forth Judge Kozinski’s tour de force dissent, was a Mexican national convicted for smuggling illegal immigrants across the U.S. border.
Dan Filler - February 6, 2006 at 1:00 am
Plainsman, your comments are fair. Insofar as my claim was based on the assumption that these judges were behaving unusually, my (quick) review of Kozinski’s and Beezer’s records on habeas cases suggests that these judges are quite liberal in granting the writ. Granting habeas in this case involved ignoring a body of Nevada state jurisprudence, and I mistakenly assumed that it would be a big deal for a federal court to insert its view of Nevada law in place of the state’s own interpretation. In my part of the country, most judges – liberal or conservative – would consider that a signficant usurpation of state power. As for the broader question of whether race, sex, and class play a part in the handling of criminal cases, I don’t back off at all. This is true from judges to DA’s to defense attorneys; it is systemic. And no, Maryland, I don’t exempt Judge Reinhardt or myself (when I handled these cases) from this claim.
Plainsman - February 6, 2006 at 9:31 am
Thanks for the response, Prof. Filler. I regret the somewhat harsh tone of my comment, but that is a serious accusation.
I am not yet sure what I think of the legal merits of Kozinski’s Goldyn opinion. I confess to being sympathetic to the opinion, and this is why: Even if it strains a relevant rule of law (deference to state courts’ interpretation of state statutes), it does so in order to uphold another rule-of-law principle: attending to the plain meaning of statutory text, especially in something as important as a criminal prosecution.
The opinion belongs in the “federal courts telling state courts their interpretations of state law are on crack” folder. Note that this folder also contains the Rehnquist concurrence in Bush v. Gore.
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