Robert E. Kennedy v. Bill Lockyer, Attorney General, State of California

This case represents a triumph of law-yering from the bench. While I share some of the court’s evident sympathy for the defendant — whose third strike resulted from the sale of less than one-tenth of one gram of a legal substance to an undercover officer1 — I respectfully dissent from its decision to step into counsel’s shoes and tango its way around the deference we owe to state courts as coordinate expositors of federal law.

I

There is no dispute that Kennedy was entitled to some portion of the transcript from his first trial on these charges. See generally Britt v. North Carolina, 404 U.S.…