When we take the judicial oath of office, we swear toI also like this passage:
“administer justice without respect to persons, and do equal
right to the poor and to the rich . . . .” 28 U.S.C. § 453. I
understand this to mean that we must not merely be impartial,
but must appear to be impartial to a disinterested observer.
Today we do not live up to this solemn responsibility.
Relying on a ground not raised by either party here or in the
district court, we refuse to consider petitioner’s serious and,
in my opinion, meritorious claims. This is only the latest
indignity inflicted on a criminal defendant who, despite
having a seventh-grade education, was forced to defend
himself at trial; although having the right to a jury, was never
told that he had to ask for one; and who was therefore
convicted and sentenced to eight years in prison in a bench
trial where neither the prosecution nor the judge lifted a
finger to bring the accusing witness into court. He’d have
had a fairer shake in a tribunal run by marsupials.
I am troubled by the disparate way we treat the parties.
Alvarez and the Community both failed to raise legal issues
at the proper time and in the proper manner. Alvarez failed
to raise his jury trial and confrontation claims by way of a
direct appeal within the tribal court; the Community failed to
raise an exhaustion defense in district court. The Community
committed an additional default by also failing to raise this
issue on appeal—something we’ve repeatedly held is an
independently sufficient basis for declining to address it.
I have read the opinion many times and disagree with
pretty much everything in it, including the numerals and
punctuation. I explain why in the pages that follow, but first
I pose a more basic question: How can a court committed to
justice, as our court surely is, reach a result in which the
litigant who can afford a lawyer is forgiven its multiple
defaults while the poor, uneducated, un-counseled petitioner
has his feet held to the fire? I attribute no ill will or improper
motive to my excellent colleagues. They are fair, honorable
and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See,
e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123
(9th Cir. 2010) (Kozinski, C.J., dissenting from denial of
rehearing en banc). I can find no justification for showing
such solicitude for the overdog while giving the underdog the
back of the hand.