Judge Alex Kozinski Website
A dissenting opinion was so persuasive that prosecutors dropped the case that convicted a man of immigrant smuggling.Henry Weinstein. Los Angeles Times. Los Angeles, Calif.: Apr 23, 2003. pg. B.1
Juan Ramirez Lopez, an illiterate Mexican man accused of smuggling immigrants into the United States, was convicted and lost an appeal. Despite his repeated protestations of innocence -- he insisted he was an immigrant himself who suffered frostbite after he had been deserted by a smuggler -- he was sentenced to 6 1/2 years in prison.
On Tuesday, he finally won, thanks to a dissenting opinion by one appeals court judge that was so persuasive, federal prosecutors decided to drop all charges and set Ramirez free after serving three years. The dissent, by Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals, pointed out that federal agents had deported to Mexico nine illegal immigrants who had crossed the border with Ramirez -- before they could testify that he was not the smuggler.
Carol C. Lam, the U.S. attorney in San Diego, said she would not comment on how her office decided to free Ramirez. She did acknowledge, however, that the government's action was rare.
"This was very unusual," she said. "We prevailed at trial. We prevailed 2-1 in the 9th Circuit ....We don't think we did anything wrong."
However, "in light of the circumstances, we felt it was in the best interest of justice to join in the motion to dismiss," Lam said. The prosecutor acknowledged that her office was concerned the appeals court might review the case again and potentially not only free Lopez, but set a precedent that could damage other prosecutions.
Legal experts said they were not aware of any other similar case. "I can't recall another situation where prosecutors won in the trial court and won on appeal and were so afraid of what the appeals court might do [after a rehearing] that they surrendered," said veteran Los Angeles defense lawyer Barry Tarlow.
"Judge Kozinski's dissent beat the government into submission," he said.
During his 17 years as a federal appeals court judge, Kozinski, 52, who was appointed by President Ronald Reagan, has gained a reputation as a smart and outspoken jurist. In the Ramirez case, Kozinski employed both traditional legal arguments and a strong dose of sarcasm to make his points.
"The question at the heart of this case is both simple and important: May the United States get rid of witnesses it knows would provide evidence helpful to the defendant in a criminal case by putting those witnesses beyond the power of the court and beyond the reach of defense counsel?" Kozinski wrote.
The case began on March 6, 2000, when Ramirez was among a group of 14 illegal immigrants arrested by Border Patrol agents. The agents found the immigrants suffering from frostbite after an unusually harsh storm that left one dead from hypothermia. Two of those arrested said that Ramirez had guided them across the border. But the other 12 gave Border Patrol other accounts: Ramirez was not their guide, there was no guide, two guides had abandoned the group.
Ramirez was taken to a hospital and questioned for nearly two days -- just under the legal limit -- before he was permitted to see a lawyer. Ramirez agreed to waive his right to have witnesses kept in the country for his trial.
Mark Windsor was appointed to represent Ramirez in court, and soon after, a magistrate in San Diego ordered the government not to deport any of the potential witnesses. But by then, nine had already been deported. Windsor contended at trial that the action had violated Ramirez's rights, but the judge disagreed, and Ramirez was convicted and sentenced to 78 months in prison.
On appeal, judges Ronald M. Gould and Richard F. Cebull upheld the conviction. They said it was not clear that the nine deported immigrants would have testified truthfully and that any testimony given by the nine would have been "cumulative" to that presented by the other immigrants who testified on Ramirez's behalf. Cebull also said that the government was under no obligation to keep all potential witnesses in the U.S. pending trial.
But Kozinski said the Ramirez case was different from others: "In all prior cases where witnesses were removed with a prosecution pending, no one knew what those witnesses might say; they could have been as helpful to the prosecution as to the defense."
In this instance though, there were "contemporaneous interview notes showing that 12 of the 14 witnesses arrested with the defendant made statements unequivocally exculpating him as to the only issue of fact in the case -- whether he was the expedition's guide rather than one of the guided," Kozinski wrote.
Removing them from the U.S. before a defense trial lawyer could interview them was "bad enough," but the judge did not permit the jury to hear what the witnesses had told the agents, Kozinski said.
Perhaps the most striking part of Kozinski's opinion was a simulated dialogue he created to describe how Ramirez's lawyer might try to explain the decision.
"Lawyer: Juan, I have good news and bad news ....The bad news is that the 9th Circuit affirmed your conviction and you're going to spend many years in federal prison." Then the lawyer gives Ramirez the good news: "You'll be happy to know that you had a perfect trial. They got you fair and square!"
Ramirez questions this conclusion, but the lawyer explains that government agents "talked to everyone, they took notes and they kept the witnesses that would best help your case. Making sure you had a fair trial was their number one priority .... Is this a great country or what?"
Then, Ramirez asks, "Don't you think [the jury] might have had a reasonable doubt if they'd heard that 12 of the 14 guys in my party said it wasn't me?" The lawyer responds: "He-he-he! You'd think that only if you didn't go to law school. Lawyers and judges know better."
Ramirez's lawyer wasn't the only attorney who had a strong response to Kozinski's opinion. After reading it, San Francisco attorney Sanford Svetcov, the former head of the appellate unit of the U.S. attorney's office there, called Roger W. Haines Jr., who heads the appellate division of the U.S. attorney's office in San Diego.
"I was disturbed about this case," Svetcov said. "I don't do this very often, but I thought someone should take a second look at it."
Within weeks, the prosecutor's office asked the defense lawyers whether they would agree to file a motion seeking to have the case dismissed. Windsor said that he and his co-counsel, Ben Coleman, were so stunned, they had to research the legalities. But they soon agreed.
"I think the U.S. attorney saw the writing on the wall," and realized the risks to other cases where they had returned witnesses to Mexico, Windsor said.
Caption: PHOTO: OUTSPOKEN: Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals wrote the persuasive dissenting opinion.; PHOTOGRAPHER: Los Angeles Times