The Reluctant Dissenter

On Monday, the Ninth Circuit issued a 6-5 en banc decision granting habeas relief for a Miranda violation. The case, Sessoms v. Grounds, has garnered attention in part because Chief Judge Kozinski wrote an opinion “regretfully dissenting” from the court’s judgment. Remarkably, Kozinski voted to deny habeas relief, even though he was “glad” that his own view of the law lost. Kozinski’s reluctant dissent provides a window into how judges struggle with the sometimes conflicting demands of law and justice.

The basic fact in Sessoms is that police failed to cease an interrogation and procure an attorney for the defendant, despite the following exchange:

Sessoms: There wouldn’t be any possible way that I could have a—a lawyer present while we do this?

Det. Woods: Well, uh, what I’ll do is, um—

Sessoms: Yeah, that’s what my dad asked me to ask you guys . . . uh, give me a lawyer

The en banc majority concluded that this was an unambiguous request for an attorney and that the police therefore had a duty under Miranda to cease interrogation and get the defendant a lawyer.

Chief Judge Kozinski’s reluctant dissent is short, and you should read the whole thing. Three passages struck me as most remarkable:

First, Chief Judge Kozinski expressed his disapproval of governing law, while simultaneously acknowledging that it is binding on him:

I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated.

Second, Kozinski suggested that the “carefully crafted” state court opinion was written with a goal in mind: to preserve the wrongfully obtained conviction.

This is not a case where the state judges were confused about the law or overlooked key evidence . . . . No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager.

Finally, Kozinski expressed satisfaction that his own view of current law lost, and he hoped that his view would also lose out in the Supreme Court.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. … The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end.

It’s noteworthy that Kozinski described his colleagues as being “able to conclude” that the defendant should obtain relief. In that passage, Kozinski was explaining his dissenting vote as a product of incapacity rather than desire.

Kozinski has written reluctant opinions before. Last year, for instance, Kozinski wrote what could be called a “reluctant concurrence” in Williams v. Johnson, where he joined a unanimous decision denying habeas for a violation that “cuts at the heart of our adversary system.” Kozinski took “comfort in knowing that, if we are wrong, we can be summarily reversed.” The Supreme Court obliged by issuing a GVR.

Kozinski’s reluctant opinions call to mind the remarks of another Ninth Circuit Judge, Harry Pregerson. During his confirmation hearings, Pregerson famously said: “If I had to follow my conscience or the law, I would follow my conscience.”

In Sessoms, did Kozinski offer a contrary answer, favoring law over conscience, or did his conscience ultimately dictate that the law had to be followed? Is it even possible that Kozinski wasn’t truly put to the test in Sessoms, since he was able to vote the law as he saw it, while knowing that the court would still grant relief?

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2 Comments

Filed under "Lower Courts", Judicial Decision-making, Judicial Rhetoric

2 responses to “The Reluctant Dissenter

  1. John Balazs

    Not the first time Judge Kozinski has done this. In Wilson v Knowles, 638 F.3d 1213 (2011), he ended dissent in an AEDPA deference case with “I hope I’m wrong.”

  2. Other similar examples where judges chose law over policy: Justices Thomas in Lawrence v. Texas (citing Stewart in Griswold); Stevens in Gonzalez v. Raich

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