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U.S. v. Cruz (9th Cir. - Feb. 10, 2009)

By Shaun Martin

I like how Judge Reinhardt begins this one: "At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not 'an Indian.'" Because he's right that I wouldn't ordinarily have thought that criminal liability turns upon this issue. But, yep, it still matters. Here, dispositively. Since Judge Reinhardt reverses the defendant's conviction on the ground that he's not an Indian.

So it's an interesting case from that perspective. Plus it's even more fun since Chief Judge Kozinski writes a whithering dissent. Some selected quotes to give you the tenor: "Worse still, after huffing and puffing for 11 hefty paragraphs and 12 chubby footnotes trying to explain why the district court erred at all, the majority concludes in a single opaque sentence that the error is 'plain.' Just how plain can this error be when the majority has to struggle so long and hard to find any error at all?" Wait a minute. Huffing and puffing?! Hefty and chubby? Are you calling me fat?!

Or the concluding paragraph: "The majority engages in vigorous verbal callisthenics to reach a wholly counter-intuitive?and wrong?result. Along the way, it mucks up several already complex areas of the law and does grave injury to our plain error standard of review. I hasten to run in the other direction." Sweet.

With anyone else, one might conclude from this exchange that there's a ton of bitterness betweeen these two. But come on. It's Alex and Steve. They're peas in a pod, even when they disagree. More importantly, both of 'em have more than enough self-confidence and thick skin to take it as well as they dish it out. So where others might see merely vitriol, I see two chambers smiling at the slams they've hurled towards the other.

Full post as published by California Appellate Report on February 10, 2009 (boomark / email).