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Ninth Circuit Judge Investigated for Writing Condemned Prisoner

by Marvin Mentor

California Attorney General Bill Lockyer called into question the impartiality of Ninth Circuit Judge Alex Kozinski as to death penalty cases after Kozinski and two other Ninth Circuit judges visited San Quentin State Prison in California, speaking with three condemned prisoners. Kozinski further wrote to one of the three prisoners, Michael Hunter, when the Judge became fascinated with Hunter's fiction writing skills. Lockyer wrote Ninth Circuit Chief Judge Mary Schroeder asking, in essence, that Kozinski be barred from ever reviewing another California capital case.

Judge Kozinski, the son of Holocaust survivors, has a distinguished career. A top-ranking UCLA Law School graduate, he clerked for US Supreme Court Chief Justice Warren Burger. Later serving as assistant White House counsel under President Reagan, he was appointed at age 35 to the Ninth Circuit.

His life as an appellate Judge has not been cloistered. A frequent public speaker on college campuses and on European TV shows, Judge Kozinski has debated the morality of the death penalty against those who would unilaterally ban it. In a 1997 article for the New Yorker magazine, he noted some ambivalence about the death penalty but observed that some murderers nonetheless deserved it.

Hunter, sentenced to death in 1981 for a double murder, read the New Yorker article and wrote Kozinski - opening up a five year correspondence comparing each other's personal written works.

Hunter's conviction was later overturned in federal district court, and, upon state retrial, Hunter was sentenced to life without parole. Prior to this resentencing in 2001, Kozinski, accompanied by fellow Ninth Circuit Judges Stephen Reinhardt and Marsha Berzon, arranged to visit San Quentin's death row where Kozinski spoke with Hunter.

It was this interface that triggered Lockyer's complaint. Not only did Lockyer complain, he sent his own investigators to raid - without notice - the home of a friend of Hunter, seizing her private e-mail files, while instructing her not to inform Kozinski of thus being intimidated and violated.

In a March 20, 2003 article to the San Francisco Daily Journal, Judge Reinhardt came to Kozinski's defense. Criticizing a March 4, 2003 letter to the Daily Journal by Professor (and former prosecutor) Laurie Levenson which had castigated Kozinski and supported Lockyer's attack on him, Judge Reinhardt commended Kozinski for his openness in being willing to learn about one condemned prisoner's thinking process. Reinhardt called Lockyer's "conduct[ing] an extensive investigation of a sitting federal judge and then try[ing] to bar him from all California death penalty cases [] absurd and unprecedented; more important, it is deeply troublesome.... If a federal judge can be subjected to this type of unwarranted and misguided invasion of privacy, what can ordinary citizens expect?"

Sources: Los Angeles Times, San Francisco Daily Journal

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