At a symposium at UC Berkeley School of Law last week, keynote speaker Judge Alex Kozinski commented that the public live video streams of oral arguments at the Ninth Circuit Court of Appeals served as a “great tool.” That observation was confirmed yesterday as the LA Times reported that over 50,000 people were tuning in to watch the oral argument on the new president’s executive order banning immigration from particular countries. Recordings of previous arguments are also available. Just a few weeks ago, a three-judge panel of the Ninth Circuit—featuring Judge Kozinski—took the US Attorney’s office to task for fighting to maintain a conviction based on perjured testimony. The case is titled Isaac Calderon v. United States. Although the central legal issue appears to be a technical and procedural one, Kozinski’s questions cut straight to the substance.
This clip begins with a few questions from Judge Watford and then Judge Kozinski jumps in.
Some of his key questions include:
- “Isn’t the United States concerned about having somebody in prison after you’ve got perjured testimony?”
- “Why would a just government want to keep somebody in prison when it has admitted that at the time at which he was convicted a key government witness committed perjury?”
- “Why are you not confessing error in this case?”
These questions, these arguments, and these videos are not about entertainment; they are about holding prosecutors accountable. Judge Kozinski has taken his judicial responsibility to curb prosecutorial misconduct and the abuse of authority seriously. About two years ago, former California Attorney General (now Senator) Kamala Harris dropped her opposition to a prisoner’s habeas petition after Kozinski grilled a lawyer from her office and encouraged him to consider a course of action that would not require the court to name names in a published opinion. And, a little less than a year ago, Kozinski authored a majority opinion naming local Washington prosecutors and law enforcement officials responsible for misconduct, and explicitly encouraged them to notify the state disciplinary body about their wrongdoing. The most recent video demonstrates again that Kozinski’s commitment is real. The question now is whether more judges around the country will follow his commendable lead.