In a fascinating essay in Legal Affairs published last year, Judge Alex Kozinski posed the following hypothetical about judicial temptation to bend the rules:

  You are reviewing a criminal appeal where a young man has been convicted of murder and sentenced to life without the possibility of parole. You examine the record and find that the evidence linking the defendant to the crime is quite flimsy. The only solid proof supporting the conviction is the testimony of an inmate who shared a cell with the defendant while he was awaiting trial, and who swears that the defendant confessed to the murder (a confession the defendant denies making). You read the snitch's testimony closely and find it transparently unconvincing.
  Applying the rules of appellate review in an objective manner, you would have to affirm the conviction. After all, the jury is the trier of fact, and it was entitled to return a guilty verdict based on the jailhouse confession alone. Yet what if you believe, to a moral certainty, that the confession is a fabrication and the defendant didn't do it? Must you affirm the conviction and let a young man you believe is innocent spend the next 60 years locked up like an animal in a 7-foot by 10-foot cage?

  I was thinking about that passage when I read the opening paragraph in yesterday's very interesting Kozinski opinion in Goldyn v. Hayes. Here is the introduction: "Petitioner spent 12 years in prison for conduct that is not a crime. We vacate her conviction pursuant to Jackson v. Virginia, 443 U.S. 307 (1979)." This introduction grabbed my attention, and I thought it would be worth taking a close look at the case to see whether Kozinski was following the rules or bending them to get to a result that he thought was just.

  Which was it? Well, let me tell you all about this very interesting case, and you can then decide for yourself. (Warning: Long, detailed post ahead. Do not read if you are operating heavy machinery or aren't a Legal Geek, First Class.)

  Joni Goldyn went to a local bank and opened an account using a fake name. Not knowing who she was — Goldyn had a number of prior felony convictions — the bank treated Goldyn very generously. The bank not only gave her an account, it also gave her a $1,000 loan, a $500 line of credit attached to her checking account, a credit card, and a "check guarantee card." The check guarantee card was a guarantee to recipients of Goldyn's checks that the bank would cover any checks that weren't based on sufficient funds.

  Over the next three months, Goldyn spent the loan money, used the line of credit, and then wrote a bunch of bad checks. Because the bank had issued the "check guarantee card," the bank had to cover the bad checks. At some point along the way, the bank send a letter to Goldyn telling her that it was going to cancel the check guarantee card. The exact language of the letter is unknown. In any event, Goldyn claimed that she never received the letter, and the bank did not actually cancel the guarantee card.

  After the letter was sent, Goldyn wrote five more checks for money she did not have in her account using the check card gaurantee. Goldyn was charged with violating Nev. Rev. Stat. 205.130(1), which makes it a crime if "a person . . . willfully, with an intent to defraud, draws or passes a check or draft to obtain [money or property] . . . when the person has insufficient money, property or credit with the drawee of the instrument to pay it in full upon its presentation."

  The theory of the prosecution was that Goldyn was intentionally and willfully defrauding the bank. She had obtained the account under false pretenses, and was writing the checks knowing that the bank would be stuck with the loss without any intent to repay the amount. A jury convicted Goldyn of five counts of this crime, one for each bad check she wrote. The Nevada Supreme Court later affirmed the conviction:

The elements of the crime of issuing a check against insufficient funds are: 1) with the intent to defraud; 2) making or passing a check for the payment of money; 3) without sufficient funds in the drawee institution to cover the check in full upon presentation. Appellant opened her checking account under an assumed name. Appellant received cash or merchandise in return for each of the checks at issue, and did not have sufficient funds in her account to cover the checks. Appellant’s check guarantee card carried a $500 line of credit, but appellant’s overdrafts far exceeded that amount. The credit union paid the checks because appellant’s use of a check guarantee card to draw the checks obligated it to do so. Although the payee of the checks was not injured, the credit union was injured by having to cover appellant’s bad checks. The jury could reasonably infer from the evidence presented that appellant, with an intent to defraud, drew and passed each of the checks at issue without having sufficient funds in the drawee institution to cover the checks.

  Goldyn's prior convictions made her eligible for a very severe sentence under the Nevada habitual offender statute. That statute is a sort of a three-strike-you're-out law: it meant that the punishment for each check crime was a potential life sentence. The sentencing judge gave her the maxiumum sentence: a whopping five life sentences, one for each check.

  Goldyn started serving her life sentences in 1991. In 2003, the parole board granted her parole petition, but Goldyn has remained on parole and her conviction has remained on the books. If she violated the terms of her parole, she could go back to prison for life. Goldyn filed a federal habeas petition asking the federal courts to vacate the state convictions. To obtain relief, Goldyn needed to satisfy the following legal standard from 28 U.S.C. 2254(d)(1):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;

  Finally, we get to yesterday's opinion. In a decision authored by Judge Kozinski, the Ninth Circuit issued an unconditional writ of habeas corpus vacating Goldyn’s conviction and ordering expungement of all state and federal records relating to the offense. According to Judge Kozinski, Goldyn had simply never committed the crime in the first place, and the absence of evidence warranted federal habeas relief.

  The key issue, according to Kozinski, is understanding the true meaning of the check guarantee card that the bank issued thinking Goldyn was someone else. The check guarantee card was another line of credit, an implicit loan arrangement, and it remained ongoing even after the bank attempted to notify Goldyn that it was canceling the arrangement. As footnote 2 states:

[The bank] allegedly sent Goldyn a letter a few days before Goldyn wrote the five checks at issue, informing her that her check guarantee account was being closed due to excessive overdrafts. But the letter was sent "return receipt requested," and no receipt was ever returned. Goldyn claims she never received the letter. In any event, Goldyn’s account obviously had not yet been closed, as [the bank] continued to cover her checks.

As a result, Goldyn couldn't conceivably be trying to draw on an account with insufficient funds or credit: any check she wrote without funds in the account was just taking out another loan for the amount of the check. She might have been guilty of defrauding the bank, but she wasn't guilty of drawing a check on an account with insufficient funds or credit. The statute only applied when "the person has insufficient money, property or credit" in the account, and the check guarantee card was credit in the account. As a result, Goldyn could not possibly have violated the statute.

  Kozinski then provided the following analysis of whether the lack of evidence satisfied the requirements of 28 U.S.C. 2254(d)(1):

No rational trier of fact could have found that Goldyn committed the crime of writing bad checks as defined by Nevada law. See Jackson, 443 U.S. at 319. And no rational judicial system would have upheld her conviction. See 28 U.S.C. § 2254(d)(1). We are saddened and disappointed that the state supreme court unanimously affirmed a conviction carrying multiple life sentences based on such cursory and inadequate review of the record in light of the applicable statute.

  So was Kozinski fudging?

  Well, before you answer that question, consider a little bit of Nevada caselaw that Kozinski's opinon omits. In the case of Garnick v. First Judicial Dist. Court, 81 Nev. 531, 407 P.2d 163 (1965), the Nevada Supreme Court casually read the statute and concluded stated that it had the following elements:

The elements of the crime of issuing a check against insufficient funds are (1) intent to defraud, (2) the making or passing of a check for the payment of money, and (3) without sufficient funds in the drawee institution to cover said check in full upon its presentation.

  It's not clear how the Garnick court reached the conclusion that these were the elements of the statute. The Garnick opinion simply states these as the elements without analysis. Further, if you read the statute closely, the Garnick court's interpretation is different from what the statute actually says. That difference is really critical here: the text of the statute says that it applies when a person "has insufficient money, property or credit," and the Garnick court replaced "money, property or credit" with the somewhat narrower word "funds." The Nevada state prosecutors presumably read Garnick and treated the the Nevada Supreme Court's reading of the statute as binding.

  Under Garnick, Goldyn seems to have satisfied the statute. In fact, the Nevada Supreme Court applied the Garnick standard to affirm Goldyn's conviction. Kozinski acknowledges that Goldyn was guilty under this standard (without citing Garnick), but concludes that this interpretation of Nevada state law is just wrong:

The state court correctly identified that Goldyn "did not have sufficient funds in her account to cover the checks." But standing alone, this is not a crime; the statute is only violated if she wrote the checks without sufficient funds "or credit." Nev. Rev. Stat. 205.130(1). Thus, Goldyn’s undisputed lack of funds is of no consequence if she had sufficient credit to cover the checks.

  So was Kozinski fudging? If so, was that a good thing or a bad thing? Comment away.