The Right Coast

February 04, 2006
Kozinski blogging
By Tom Smith

Here is a long, detailed post on an interesting Kozinski opinion. K is one of my favorite judges, not first, or second, but definitely top ten. He is somewhat full of himself, as judges tend to be (Paul and Will, I'm not talking about you). But he has more right to be than most people who are full of themselves.

In any event, it seems to me K is right on this case, and that it is not that hard of a case. Without going through it in detail, it seems to me that it comes down to whether using a check guarantee card which you don't know the bank has cancelled, is fraud. The Nevada statute on check fraud can, I suppose, be read in various ways, but they all require fraud. Writing a check on an account that you know (or should know) has insufficient funds in it, is fraud because you are representing falsely that you do have funds to cover the check. What is the false representation in using a check card when you know or should know you are exceeding the credit limit of the card. You are violating your credit agreement, certainly. But to whom are you making a false representation? Not to the merchant, who is paid, because it honored a facially valid check card. To the bank? That makes no sense. The bank knows what your credit line is, and that you have exceeded it. Try as I might, I can't come up with any plausible deceit or false representation between card user and bank, only breaches of contract. If you could show the defendant planned to abuse the card from the opening of the account, that would probably be different, but a different case. So, Judge K is right again.

As to whether I would reverse on appeal the life sentence of a man falsely convicted on jailhouse snitch testimony (I know the testimony is false by hypothesis -- which does most of the work in this hypo), even though the jury believed him -- well, of course I would, and I would expect any good judge to do so. Yes, I suppose technically the jury's assessment of the facts deserves respect, and usually it does. This should be a heavy presumption. But if a judge really believes to a moral certainty that the jury was wrong on the facts, then he should not let an innocent man spend the rest of his life in prison to uphold the principle that the jury is the finder of fact.

In real life, however, I suspect this sort of hypo is unrealistic. Very rarely would a judge be able to tell from reading a transcript that a witness was lying, when the jury believed him. Demeanor and all that. If a judge thinks the witness is lying, he should probably consider whether he is not habitually oversure of his own opinions, as judges tend to be. Or just indulging a misplaced compassion for violent criminals, paper hangers or whatever other class of miscreant he is dealing with. That is a lot more likely than a false conviction by a hoodwinked jury. Juries can be fooled, but, I am told, it is hard to do.