I'm BACK and Post Moderist Jurist Returns to Reality
I'm back from my hiatus. What brought me back was this article, and its validation of my category "Felony Stupid." I don't have time to do a law review style analysis right now. But what's interesting is what I am reading between the lines.
This case involves the instructions to be given a jury in a criminal matter when you might look at a set of facts and say "how on God's green earth can that person claim s/he didn't know what was going on?" Because crimes require certain levels of "knowledge." And since you can't get climb into a person's brain (nevertheless time travel and climb into their brain at that the time of the alleged crime) to know what they knew, and when (sound familiar), often knowledge is imputed.
So this decision says you can impute knowledge in a certain way. "How" isn't as interesting to me right now, as the last few paragraphs of the article:
Little also found it significant that the iconoclastic Kozinski -- who takes over as the 9th 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."
It sounds like Judge Kozinski, who as the article states will be Chief Judge of the 9th Circuit next year, may have moved from a post-moderist approach to a down to earth "How on God's green earth can you NOT have known" approach.
Now it's always possible that Judge Kozinski, 15 years ago, was doing what judges sometimes do - asking extremely hypothetical questions just to see where they lead. But if we could time travel back and dig into the Judge's mind 15 years ago, I think that post-modern idea of "how do we know anything" was really playing in his mental jungle gym. And either it's not now, or it has been gagged.
So, apparently in the 9th Circuit, there now really is something called "felony stupid."
