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Alex Kozinski says Nevada state courts wrote a check they couldn’t cash when they sentenced Joni Goldyn to five life terms for overdrawing her bank account. The Ninth Circuit judge excoriated the Nevada Supreme Court and state prosecutors in a Wednesday opinion for letting Goldyn spend 12 years in prison (she was eventually let out on parole � for the rest of her life) on charges of writing checks that exceeded her bank balance, but were still paid by the Nevada Federal Credit Union. “The bottom line is that the checks Goldyn wrote were not bad, and the merchants who accepted her checks were not injured; they were paid in full,” Kozinski wrote. His opinion was joined by Senior Judge Robert Beezer and U.S. District Judge Cormac Carney, a Central District of California judge sitting by designation. “Had the Nevada courts and prosecutor’s office taken more seriously their ‘obligation to serve the cause of justice,’ Kozinski wrote, quoting a U.S. Supreme Court opinion, “Goldyn would not have spent 12 years behind bars for conduct that is not a crime.” The opinion takes the rare step of issuing an unconditional writ that � barring reconsideration by the Ninth Circuit or the U.S. Supreme Court � would overturn Goldyn’s conviction and expunge her record. Kozinski said that since the checks were paid, Goldyn was essentially prosecuted for failure to repay a debt to the bank. The bank could use the civil courts to seek repayment, the opinion said. “But failure to repay a loan is not a crime; the days of imprisoning insolvent debtors are long gone,” Kozinski wrote, citing the 13th Amendment, which was added to the Constitution in 1865. “From my client’s perspective, it’s a very, very good opinion,” said Paul Turner, the Nevada assistant federal public defender who argued the case. “She spent 12 years in prison,” he added. “That’s something she has to deal with on a personal basis.” Goldyn received the multiple life terms because the Nevada court sentenced her as a habitual offender. Nevada Deputy Attorney General Victor Schulze, who argued the case, said that while he disagrees with Kozinski’s opinion, it wasn’t a shock. “Based on the questions I got at oral argument a couple of months ago, I’m not surprised,” he said. “Judge Kozinski was asking some pretty harsh questions.” But Schulze said he feels the opinion goes too far in addressing state law. “The only issues the court has jurisdiction over are issues of federal law,” he said. “They may be going too far in the area of state law.” Goldyn was able to make a habeas claim because her parole status required her to maintain contact with law enforcement officials, and therefore she was technically in custody. Schulze added that he didn’t expect to see such a strong rebuke of the state supreme court. “The language directed at the Nevada Supreme Court was very, surprisingly harsh to a fellow court,” he said. Rory Little, a professor at Hastings College of the Law, agreed with Schulze that Kozinski may have extended himself a bit too far. “I’ve almost never seen an unconditional grant of habeas when the court hasn’t given the state a chance to fix the problem,” Little said. He noted that the opinion cites a dissent by U.S. Supreme Court Justice Anthony Kennedy in Dretke v. Haley, 541 U.S. 386, a case with similar facts in which the Supreme Court overturned a sentence but remanded the case back to the state court to determine a fair outcome. “Kozinski here is, in a sense, throwing it back in the Supreme Court’s face in a case where he doesn’t think cert would ever be issued,” Little said. But, he added, that’s not necessarily a bad thing, since, in his opinion, the Nevada courts had clearly been unfair in their treatment of Goldyn. “I think Kozinski has definitely gone further than the law currently allows him to go because he’s granted an unconditional writ based on a dissent,” Little said. “But I have a respect for Kozinski,” he added. “In this case, he’s probably accurate in going further than the law allows him to go.” The case is Goldyn v. Hayes, 06 C.D.O.S. 967.

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