Jewish World Review Feb. 19, 2002/ 17 Adar I, 5763

Wesley Pruden

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When can the judge watch the machine? | LOS ANGELES Death Row fascinates. It fascinates every thoughtful prosecutor, lawyer, judge and juror, and often the rest of us.

Hardly anyone, in fact, is immune from the haunting "what if?"

This can lead to the ambivalence felt by many judges, governors and even prosecutors. One famous governor of my close acquaintance, regarded as a particularly tough customer by history, invariably disappeared for days after an execution, and could not abide small talk for days after his return. But capital-punishment fans see even a hint of such agonizing, even if it leads nowhere, as an affront to the machinery of state-imposed death.

So the thoughtful man has to be careful. The landscape is littered with humiliated editors, novelists, preachers, lonely women and others who befriended sympathetic killers, only to be burned (so to speak).

Alex Kozinski is a judge on the U.S. Ninth Circuit Court of Appeals, the circuit famous (or infamous) for its weird judges and goofy opinions. Mr. Kozinski, a lawyer with impeccable conservative credentials, was appointed to the court by Ronald Reagan specifically to help impose a little order in the court.

But Judge Kozinski has a thoughtful curiosity, and now he, too, is in a spot of warm water for taking a lively interest in a man who by all accounts is, though a killer, several cuts above a thug. An exchange of letters and a visit led to an acquaintance, if not a friendship, with Michael Hunter, now 44, convicted of slaying his father and his stepmother.

The state attorney general is trying to get Judge Kozinski barred now even from sitting on death-row appeals. The judge's colleagues think the controversy is "ludicrous," but it has opened a remarkable controversy over when and how - or even whether - a judge can see firsthand where his rulings and opinions lead.

Hunter has been in prison for 21 years, first on Death Row at San Quentin, waiting execution, and since an appeals court overturned his conviction and he was convicted a second time, at Salinas Valley State Prison, where he is serving a sentence of life without parole. Judge Kozinski was not involved in any of the proceedings against Hunter.

Judge Kozinski, 52, stands out on the Ninth Circuit panel for his legal scholarship, for his catholic tastes and for the liveliness of his written opinions. He does not write like a lawyer. He has a reputation as an effective advocate for capital punishment. But after 17 years on the court, perhaps repelled by the certain glee with which the death penalty is applied in certain places, he began to feel ambivalence, but not opposition.

He expressed this ambivalence, such as it was, in an article in the New Yorker, and concluded: "Whatever qualms I had about the efficacy or the morality of the death penalty was drowned out by the pitiful cries of the victims screaming from between the lines of dry legal prose.

"I sometimes wonder whether those of us who make life-or-death decisions on a regular basis should not be required to watch as the machinery of death grinds up a human being. I ponder what it says about me that I can, with cool precision, cast votes and write opinions that seal another human being's fate, but lack the courage to witness the consequences of my actions."

Michael Hunter by this time had become a writer in the long hours spent in the isolation of his prison cell. He won a prize in a fiction contest for prisoners sponsored by PEN, an organization of writers. He read Judge Kozinski's piece in the New Yorker and wrote to him, enclosing a copy of a story he had written about a fellow inmate, who had given up his appeals and was executed.

"The idea of accepting death can be very seductive to a condemned prisoner," Hunter had written. "The thought of attaining a sense of peace and tranquility after giving up the struggle is very tempting ... by accepting and inviting your greatest fear, death, into your life, you could virtually eliminate the control that guards, wardens, judges and governors have over your fate. I remember I'm only here for one reason, to die, and this will almost surely be my fate. However, 'almost surely' is not 'definitely,' and it is the difference ... that is the source of my determination to resist being seduced by death."

The correspondence between the judge and the prisoner has ended; Hunter, ever the cautious prisoner, wrote in a final letter to Judge Kozinski that he had no plans to write to him again. For his part, the judge seems to have figured out the attorney general's concerns. "It must make them uncomfortable for us to think of [men on Death Row] as flesh-and-blood human beings. It's probably easier to dispose of these cases if you don't think of them as human beings. That's the only thing I can think of."

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JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.

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