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Capital Complications
A judge gets grief for communicating with a death-row inmate.


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Judge X should be barred from hearing any death-penalty cases, a defense lawyers’ association says. Why? It turns out the judge corresponded with and once met with a murder victim’s brother. The judge hadn’t been involved in the murder case — the correspondence began when the brother (who is a writer) had written the judge responding to one of the judge’s published articles. This interaction with one person, defense lawyers say, prejudices the judge as to all other death cases, or at least raises an “appearance of impropriety.”

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An outrageous claim, many would rightly say: No ethical rule bars a judge from talking to people whose cases aren’t before him. Judges make decisions about the real world. They’re expected to speak to people who have various experiences, especially to those who can articulately discuss those experiences.

And yet this is happening in California, with two twists: First, it is the California attorney general’s office that is asking that federal appellate Judge Alex Kozinski (for whom I clerked ten years ago) be barred from death-penalty cases, because he had corresponded and met with a convicted murderer, Michael Hunter. And, second, Judge Kozinski is a vocal defender of the death penalty, on a court where many judges are seen as anti-death-penalty; if Kozinski stopped participating in capital cases, this would actually hurt the attorney general’s office. Legally, though, the real complaint and the hypothetical one are identically meritless.

Of course, judges talk to convicted murderers more rarely than they talk to victims’ families. Most murderers aren’t worth talking to. Hunter, though, is an award-winning prison writer of apparently considerable talents. After Kozinski wrote a New Yorker article defending the death penalty, Hunter (who was then on death row) sent him some articles that Hunter had written opposing the death penalty. Kozinski found Hunter’s work interesting, and replied.

Over time, Kozinski and Hunter exchanged some more letters, and talked on the phone once when Kozinski wanted permission to cite one of Hunter’s articles in an opinion. When Kozinski toured San Quentin with two other judges, Kozinski asked to meet Hunter in person. (Hunter’s conviction had by then been overturned, in a decision that never reached Kozinski’s court, and Hunter had been retried and sentenced to life in prison.)

Kozinski’s reason for the meeting, which was attended by Kozinski, Hunter, and a San Quentin public-information officer, was simple. The visit, Kozinski said, was an opportunity “to see what the inmates look like. [To l]ook in their eyes. I can go meet a businessman any time. Meeting someone who has spent time on death row seemed like something I shouldn’t pass up.”

This attitude is entirely in character: Judge Kozinski is one of the most intellectually curious people I know. He has no affection for multiple murderers. He has repeatedly stressed that many murderers deserve to die. When a friend of Hunter’s wrote Kozinski about whether Hunter could get released, Kozinski properly told her that Hunter was serving a lawful sentence for his crimes. But Kozinski thought he had something to learn from talking to Hunter — an attitude that should be praised, not censured.

At the meeting, Kozinski also asked Hunter about the personalities of a few other inmates whose cases Kozinski had heard in the past, and whom Hunter knew. But those decisions had been handed down by the time of the meeting; Kozinski was just curious about what the defendants were like, a natural reaction.

None of this shows that, in the words of the attorney’s general office, “Judge Kozinski’s interest in these [inmates'] cases has become so personal that it might interfere with his ability to remain neutral in these cases.” And there’s certainly no basis for the office’s broader claim that Kozinski’s interest “might interfere with his ability . . . to remain neutral in any other California capital case,” or that there’s some “appearance of impropriety” here. No reasonable person should think that just because a judge had corresponded and met with one killer (or one victim), the judge can’t objectively resolve cases involving other killers (or victims).

Wanting to understand the mentality of murderers, or understanding crime victims’ pain, doesn’t stop a judge from being objective. Judging doesn’t require ignorance, or seclusion from the real world. It requires an ability to impartially consider what one learns, not an avoidance of learning certain things.

Judge Kozinski supports the death penalty, as do I. But killers on death row are still people, and learning what makes people tick is part of a judge’s job. The California attorney general’s office ought to recognize this, rather than bringing a sure loser of a complaint, asking for a remedy that has no legal justification.

Eugene Volokh teaches First Amendment law at UCLA School of Law.



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