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The question of how to determine whether someone knew they were committing a crime has long been an epistemological briar patch. As Ninth Circuit Judge Alex Kozinski put it in a Monday opinion, “we’ve seen a proliferation of narrow, heavily fact-dependant and at times contradictory opinions that have been difficult for both judges and litigants to navigate.” So, in his majority opinion for a 15-member en banc panel, Kozinski set out to “clear away the underbrush” surrounding how juries should be told to treat a defendant who claims she didn’t know that what she was doing was a crime, even if she probably should have. Writing for a 10-judge majority, Kozinski said trial judges should have broad discretion in instructing a jury that a defendant’s willful ignorance amounted to knowledge of criminal activity. It was the second time Kozinski has addressed the issue: In October 2005, he dissented from a three-judge panel’s decision that reached the opposite conclusion. Judge Susan Graber, in a dissent from the en banc opinion, said the instruction in the case could have confused the jury. The majority opinion came in the case of Carmen Heredia, caught driving her aunt’s car from Mexico into Arizona with about 350 pounds of pot in the trunk. Heredia said she hadn’t known about the drugs, though she admitted she’d been suspicious of the overwhelming smell of fabric softener � and of her aunt’s explanation that she’d spilled some in the car. U.S. District Judge John Roll of Arizona gave the jury a “ Jewell instruction,” telling them that if Heredia had intentionally ignored criminal conduct, they could decide she’d had knowledge of it. Kozinski upheld that decision. “A reasonable jury could certainly have found that Heredia actually knew about the drugs,” he wrote. “Not only was she driving a car with several hundred pounds of marijuana in the trunk, but everyone else who might have put the drugs there � her mother, her aunt, her husband � had a close personal relationship with Heredia.” On Monday, Steven Kalar, a senior litigator in the San Francisco federal public defender’s office who blogs about the Ninth Circuit, criticized the opinion. “Judge Kozinski said he’s clearing the underbrush, but I think it might pose more questions than it answers,” he said. Kalar added that giving broad discretion to trial judges “means less guidance, so I think we’re going to have a trove of litigation.” In dissenting on behalf of four judges, Graber said the Jewell instruction creates a crime not legislated by Congress by defining willful ignorance as knowledge. “The majority creates a duty to investigate for drugs that appears nowhere in the text of the statute, transforming knowledge into a mens rea more closely akin to negligence or recklessness,” she wrote. Such complaints about the Jewell standard are longstanding, said Rory Little, a professor at Hastings College of the Law. “The question is, when do we say someone knows something when they don’t know something but should by any reasonable standard,” said the former federal prosecutor. He asks students whether they know where their cars are parked � then notes that they know where they left them, but don’t know they’re still there. He reads the Kozinski opinion to say that “if someone is practically certain of something, then we’re going to say it’s knowledge.” Little also found it significant that the iconoclastic Kozinski � who takes over as the Ninth Circuit’s chief judge next year � wrote the tricky decision. “When he writes now, he writes with the understanding that he’s going to be the chief judge,” Little said. “He’s less interested with taking fliers than he may have been 10 or 15 years ago.” But, he added, even 15 years ago, Kozinski was troubled with questions of knowledge, as evidenced by a question he asked Little in an oral argument. “He asked me, ‘How do we know anything? How do we know we’re really in this courtroom?’” Little said. “I was silenced,” he added. “I didn’t have an answer.” The case is U.S. v. Heredia, 07 C.D.O.S. 3430.

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