Appellate Circuit

Even Former Chief Judge of the Ninth Circuit is Disturbed at the Fifth Circuit’s Arrogance and Self Entitlement

Alex Kozinski said he was also bothered by the 5th Circuit panel’s publication of such a consequential decision without adversarial briefing. You have to have modesty, to realize that your first instinct is not always the right instinct.

Kozinski inspired by ex-law clerk, once imprisoned, to pen 5th Circuit amicus brief

MAR 15, 2021 | REPUBLISHED BY LIT: MAR 17, 2021

Eleven years ago, a Tulane Law School graduate named Haller Jackson clerked for Judge Alex Kozinski on the 9th U.S. Circuit Court of Appeals. Jackson was widely seen as a brilliant thinker – he also clerked on the 5th Circuit and for two federal district judges – and Kozinski trusted his legal instincts.

So when Jackson told Kozinski that he was hoping to find someone to file a brief calling for en banc review of a Feb. 9 ruling by the 5th Circuit, Kozinski was interested – especially when Jackson told him that the case involved a warden Jackson knew from his imprisonment at Louisiana’s Angola state penitentiary.

Jackson is no longer a lawyer. He pleaded guilty in 2015 to computer solicitation of a minor and was sentenced to a five-year term, which he served at Angola. In prison, Jackson told me in a phone interview on Monday, he got to know Jack Rutherford as a pro bono lawyer for Angola inmates. He also became all too familiar with an assistant warden at Angola. Jackson paid close attention when Rutherford filed a civil rights case on behalf of a Louisiana woman, Priscilla Lefebure, who alleged that she had been raped by the assistant warden and sought to blame district attorney Samuel D’Aquilla for instituting policies that emboldened her alleged attacker.

Jackson believed that a three-judge panel at 5th Circuit erred when it ruled last month that Lefebure did not have standing to sue D’Aquilla. The 5th Circuit cited the U.S. Supreme Court’s 1973 decision in Linda R.S. v. Richard D., which holds that alleged crime victims cannot sue to compel prosecution.

But Lefebure’s complaint, by Jackson’s reading, was an attempt to hold the D.A. responsible for policies favoring prison officials, not to compel the assistant warden’s prosecution. Lefebure wanted damages for the alleged violation of her civil rights of equal protection and non-discrimination.

Jackson said he was also disturbed that the 5th Circuit panel – Judges Priscilla Owen, James Graves and James Ho – published a decision on a major constitutional issue without briefing from Lefebure’s counsel, Rutherford. (Rutherford told me in an email that he was in a severe depression when the 5th Circuit brief was supposed to have been filed, after he was advised to stop taking prescription medication for ADHD in advance of surgery to complete his gender transition.)

Jackson said he sent the panel ruling and Rutherford’s petition for en banc review to several people, hoping to find an amicus for Lefebure.

When Kozinski read what Jackson sent, he said in an interview on Monday, he remembered an opinion he had written for the 9th Circuit, 2010’s Elliot-Park v. Manglona. That case addressed qualified immunity, not constitutional standing, but, like Lefebure, the plaintiff in the Manglona case alleged that he was twice victimized, by a drunk driver who collided with his car and by an unofficial law enforcement policy of overlooking infractions by a select group of defendants.

“Non-enforcement of laws is very dangerous,” Kozinski said. “When you exclude certain crimes, you are relegating victims to a no-man’s land where they live unprotected.”

Kozinski said he was also bothered by the 5th Circuit panel’s publication of such a consequential decision without adversarial briefing.

That would not have happened on the 9th Circuit when he served on the court, Kozinski said. (Kozinski resigned in 2017 in the midst of a sexual harassment investigation.)

“You have to have modesty, to realize that your first instinct is not always the right instinct,” Kozinski said.

If Lefebure’s own counsel was not able to brief the case, he said, the 5th Circuit panel should have appointed an amicus to argue why the alleged victim had standing to sue the D.A.

Kozinski reached out to two friends, former U.S. District judge F.A. Little of Alexandria, Louisiana, and former Manhattan federal judge Michael Mukasey, who also served as a U.S. attorney general under President George W. Bush. Mukasey, now of counsel at Debevoise & Plimpton, and Little, who is of counsel at Gold Weems, both told me that they were concerned that the 5th Circuit panel ruling conflicted with decisions from other circuits that have allowed alleged crime victims to bring civil rights actions over discriminatory law enforcement policies.

“The rule that the case established is not only unjust but also puts the 5th Circuit at odds with other circuits in an unstated way,” said Mukasey.

On Friday, the three former judges filed a proposed amicus brief calling on the en banc 5th Circuit to take up Lefebure’s case. Kozinski, Little and Mukasey argued that the 5th Circuit panel almost surely reached the wrong conclusion because Lefebure alleged a redressable injury in claiming that her assault was the result of the D.A.’s “persistent and discriminatory policy of underenforcing rape laws.”

The ex-judges argued that 5th Circuit panel’s procedural lapses were even more egregious. The panel, they said, should have tested the D.A.’s arguments through adversarial briefing – and should have acknowledged that its ruling “has put the 5th Circuit into conflict with every other federal court of appeals to address this and similar issues,” the judges’ brief said. That “sleeper conflict,” the ex-judges said, can only be cured by the en banc court.

In the underlying case, Lefebure alleged that she was viciously assaulted twice by her cousin’s husband after she sought refuge at his house because of flooding in Baton Rouge. An examination conducted several days after the second alleged assault showed finger- and hand-shaped bruises on her thighs, arm and shin. She claimed that the district attorney and law enforcement officers never conducted a thorough investigation of her allegations, neglecting even to process her rape kit for months.

The D.A. did convene a grand jury but presented testimony only from Lefebure and her alleged attacker, who said their encounters had been consensual “rough” sex.

The 5th Circuit panel said the allegations were “sickening,” but ruled that Lefebure nevertheless had no right to sue. “If her account is correct, then the system failed her – badly,” Ho wrote. “But none of this changes the fact that our court has no jurisdiction to reach her claims against the district attorney.”

D.A. D’Aquilla’s lawyers at Porteous, Hainkel & Johnson and the Holthaus Law Firm argued in their brief opposing en banc review that Lefebure is improperly attempting to second-guess the grand jury’s decision not to indict after hearing “the testimony of the only two actual participants,” the brief said. D’Aquilla’s lawyers also argued that the 5th Circuit rightly saw Lefebure’s suit as a dangerous attack on prosecutorial discretion that threatened to upend the criminal justice system. D’Aquilla’s lawyers did not respond to my email query.

Lefebure counsel Rutherford said by email that he’s hoping the ex-judges’ amicus brief will make a difference with the en banc court. The brief, he said, “recognized … the negative impact the 5th Circuit’s ruling will have on millions of victims everywhere and on our ability to hold district attorneys accountable for violations of enshrined constitutional rights.”

The opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

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Even Former Chief Judge of the Ninth Circuit is Disturbed at the Fifth Circuit’s Arrogance and Self Entitlement
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