28 US Code sec. 455 provides that "(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding ...."
Many of us have become familiar with the activities of Paul Watson and his anti-whaling group Sea Shepherd Conservation Society through the Animal Planet program Whale Wars. In a civil case brought by the Japanese whalers' front group against Watson and the Sea Shepherds, US Ninth Circuit Court of Appeals Alex Kozinski (of cow porn fame) has issued an opinion finding that the whalers should be allowed to bring piracy claims against Watson and the Sea Shepherds.
Kevin Jon Heller has shown that Kosinzki's grasp on the law is pretty weak:
... the Ninth Circuit, in an opinion written by Judge Kozinski, has decided that anti-whaling activism qualifies as piracy if it involves violence against a ship on the high seas. I’m running short for time right now, but I want to briefly respond to Kozinski’s key claim about the traditional understanding of piracy’s “private ends” requirement (p. 4; emphasis mine; internal citations omitted):
The district court construed “private ends” as limited to those pursued for “financial enrichment.” But the common understanding of “private” is far broader. The term is normally used as an antonym to “public” (e.g., private attorney general) and often refers to matters of a personal nature that are not necessarily connected to finance (e.g., private property, private entrance, private understanding and invasion of privacy)…. We give words their ordinary meaning unless the context requires otherwise. The context here is provided by the rich history of piracy law, which defines acts taken for private ends as those not taken on behalf of a state.
Kozinski doesn’t mention any of the historical sources that ostensibly constitute this “rich history”; he simply cites the dictionary definition of “private” and a 25-year-old Belgian case that has never been followed by any other court. But that’s not surprising: although the traditional understanding of piracy is not limited to acts of violence motivated by the desire for financial gain (an error made by many scholars and activists), there is significant historical support for the idea that piracy specifically excludes acts of violence that are politically motivated.
Heller continues with examples from legal history showing that Kozinski is wrong on the law, before concluding that:
Kozinski’s “rich history,” in short, is actually much poorer than he imagines. Perhaps he should spend less time writing clever introductions to his opinions and more time analyzing actual historical sources.
Which brings me to that "clever introduction." Kozinski opens his opinion with these paragraphs:
You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.
Plaintiffs-Appellants (collectively, “Cetacean”) are Japanese researchers who hunt whales in the Southern Ocean. The United States, Japan and many other nations are signatories to the International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74, which authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. Cetacean has such a permit from Japan. Nonetheless, it has been hounded on the high seas for years by a group calling itself Sea Shepherd Conservation Society and its eccentric founder, Paul Watson (collectively “Sea Shepherd”). Sea Shepherd’s tactics include all of those listed in the previous paragraph.
Remember there has been no trial. Kozinski is reversing the district court's dismissal of the piracy claims against Watson and the Sea Shepherds. There is no factual record on which Kozinski can draw any conclusions about Sea Shepherd’s tactics.
Beyond this, however, there is the demeaning and belittling tone adopted by Kozinski. "You don’t need a peg leg or an eye patch." A lame attempt at humor at defendants' expense?
Asserting the whalers have been "hounded," without proof thereof?
Calling Watson "eccentric"?
We are told that "it is reversible error for the trial court to belittle counsel, demonstrate outright bias, or 'so infect[ ] [the trial] with the appearance of partiality' that the trial court's conduct inevitably improperly influenced the jury." McMillan v. Castro, 405 F.3d 405, 409-10 (6th Cir.2005). Should it not equally be error for an appellate judge to belittle a party, especially before there is even a shred of admissible evidence on which to base such perjorative comments?
We are told by the Ninth Circuit itself that:
The Ninth Circuit has disapproved of the admission of derogatory statements from a judge concerning a defendant's credibility because a judge is an “authoritative, professional fact finder” who is apt to carry excessive weight with the jury. United States v. Sine, 493 F.3d 1021, 1033–34 (9th Cir.2007); see id. at 1031 (agreeing with a defendant that “derogatory factual findings and comments” from a judge's order in a prior related case created “too great a danger of unfair prejudice and thus violated Rule 403”).
U.S. v. Wiggan, 700 F.3d 1204, 1220 (9th Cir. 2012). Yet, don't we have precisely such derogatory comments here? Don't they call into question Kozinski's impartiality?
Look, I think what Watson and the Sea Shepherds do at the very least hovers on the brink of eco-terrorism. But I'm not a federal judge charged with impartially assessing evidence and applying law. I'm just a guy with a blog.
Whatever one makes of Watson and his fellow ecomentalists, they deserve a fair shake. They didn't get one from Judge Kozinski. He may not be legally obliged to disqualify himself from further involvement in the case, an almost impossibly high standard, but he sure ought to take a hard look at himself and ask himself why he went out of his way to be an ass.
By the way, in what is the utlimate irony, Kozinski concludes his opinion by disqualifying the trial judge:
The district judge’s numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington.
But Kozinski's opinion doesn't raise doubts about his impartiality? The man is a joke! Albeit not a very funny one.