Judge Alex Kozinski’s Actions to Resign Are Unfortnuate Given His Strong Stand on Prosecutorial Misconduct

Alex Kozinski’

Alex Kozinski, who sits on the Ninth Circuit Court of Appeals, said Monday he was retiring immediately in the face of around 15 reports of sexual misconduct.

Kozinski has been on the court since 1985 when he was appointed by Ronald Reagan.

The allegations involved showing pornographic images to law clerks, the improper touching of a woman,  kissing a woman without her consent, and similar claims. A law professor, Leah Litman, told the Washington Post “that the judge had pinched her leg and talked about just having had sex before they appeared on a panel together.

None of the accusations have been proven to be true. Instead, the judge decided to resign given his age and the appearance of impropriety surrounding these events. We think he saw the writing on the wall.

OUR FREE OPINION

Regardless of the allegations, and Kozinski’s abrupt resignation, it is worthwhile to note that the judge was a champion for defendants who were the victim of prosecutorial misconduct.  (He was not so supportive of sexual harassment cases– Slate.com).

Johnny Steven Baca

In 1995, John Adair and John Mix, a gay mixed couple were murdered in Riverside, California. Based primarily on informant testimony, Johnny Steven Baca was convicted of the murders.

During the trial, prosecutors said that the informant, Daniel Melendez, was not receiving any benefit in his own (unrelated) murder case for his testimony that Baca had confessed to him. The prosecutors backed Melendez up. Later, at his sentencing, Melendez received a reduced sentence of ten years based in part on his cooperation in the Baca case. It became apparent that the prosecutors were not straightforward.

After ten years of appeals in the state courts of California, the case reached the Ninth Circuit Court of Appeals, arguably the most liberal circuit in the nation. Defense lawyers faced a daunting challenge— how to overcome the Antiterrorism and Effective Death Penalty Act (AEDPA).

The AEDPA bled into federal law after the Oklahoma bombing – the measure was pushed hard by former President Bill Clinton.

The act “is surely one of the worst statutes ever passed by Congress and signed into law by a President. The heart of the law is a provision saying that, even when a state court misapplies the Constitution, a defendant cannot necessarily have his day in federal court. Instead, he must prove that the state court’s decision was “contrary to” what the Supreme Court has determined is “clearly established federal law,” or that the decision was “an unreasonable application of” it.

This law gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned,” The New Yorker opined.

Ultimately, however, after a few set-backs, Baca was able to get a third new trial. On appeal from the second trial, recognizing that the defense likely would be unable to get past AEDPA, Kozinski made it clear that he would be calling out the prosecutors by name. The prosecution agreed to a third trial.

Given the allegations, and Kozinski’s decision to resign his position (something akin to a guilty plea), we do not quarrel with the judge’s decision to resign. We do, however, applaud his decisions on prosecutor misconduct.

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