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The great divide between California’s criminal appeals lawyers and the Ninth Circuit U.S. Court of Appeals could get wider as a result of a recent letter that the state sent to Chief Judge Mary Schroeder. The letter details an investigation the attorney general’s office conducted into a visit by influential and conservative Ninth Circuit Judge Alex Kozinski to San Quentin State Prison’s death row. The question is not whether the visit was unusual — it was — but whether Kozinski improperly discussed cases with an inmate and jailhouse author whom he visited. “We are troubled by these events,” wrote Chief Deputy Attorney General Peter Siggins, suggesting Kozinski not sit on death cases pending further investigation. “These highly unusual circumstances, particularly Judge Kozinski’s discussion . . . of the status of other death row inmates, some who have cases before Judge Kozinski, raise serious concerns.” Most of the cases allegedly discussed between Kozinski and convicted double-murderer Michael Hunter were decided by the time the two met last September. Hunter’s appeals never made it to the Ninth Circuit, either. But in one of the cases allegedly discussed, Kozinski wrote for a panel that specifically retained jurisdiction should the case return to the Ninth Circuit. The panel ordered an evidentiary hearing into whether James Richard Odle’s brain injury rendered him unfit to stand trial. According to Siggins, Kozinski asked Hunter if Odle was “really crazy.” Kozinski declined to say what he and Hunter talked about. But he defended the visit to death row, saying it’s good for judges to familiarize themselves with cases they’ve had. “Look, I often go visit after cases are over. I’m curious. If I know the location I’ll go and look at it,” Kozinski said. “I just think it’s important for us to deal with reality.” He wouldn’t comment, either, on whether he would respond to Schroeder’s request that he address the contents of the AG’s letter. The recusal request, first publicized in the Los Angeles Times, led Kozinski and his liberal colleague, Stephen Reinhardt, to question the AG’s strategic thinking. Given Kozinski’s pro-death penalty track record, seeking his ouster is “nuts,” Reinhardt told the Times. Whatever the AG’s motives, discussing Odle’s case would be unethical, says Laurie Levenson, a professor at Pepperdine University School of Law who spoke to the state AG’s office about the controversy while preparing an upcoming op-ed piece. She said Kozinski at least created the appearance of impropriety by having an ex parte conversation about a case that may come back to him. And she doesn’t think Kozinski can cure the problem by recusing himself if it ever does. “I don’t think that’s a complete remedy,” she said. But Levenson said the state’s fear may be that Kozinski is reexamining his pro-death penalty stance given the recent controversy surrounding the justice system’s ultimate penalty. “If he jumps on the anti-death penalty bandwagon, that will make it very difficult” for the state, Levenson said.

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