FOR THREE DAYS, it was the hottest story in town, an irresistible fable about pornography, a respected judge and the Internet blowing through the Lenosphere and legal punditry as ideology got stood on its head. ACLU-hating bloggers found themselves defending a fellow libertarian’s right to after-hours privacy. Liberals suddenly closed ranks behind a Reagan court appointee.
Then, just as quickly, it was over, as the wet-T-shirt contest that is civic discourse moved on to the NBA playoffs and The Incredible Hulk.
It began with U.S. v. Isaacs, a federal obscenity trial in which Hollywood resident Ira Isaacs, 57, was accused of distributing films depicting bestiality and defecation. The moment it got under way, a story by Scott Glover on the L.A. Times’ Web site announced that the presiding judge, Alex Kozinski, had been archiving pornographic material on his own, publicly accessible Web site.
The news was a car bomb exploding in the bazaar of public opinion. Kozinski was the 9th Circuit Court of Appeals’ chief judge, a formidable intellect and a well-known maverick whose decisions on behalf of individual rights had often annoyed conservatives.
He was denounced as a pornmeister, a hypocrite and worse.
“If this is true,” Senator Diane Feinstein said in a statement, “this is unacceptable behavior for a federal court judge.”
On June 14, after one day of testimony, Kozinski recused himself from the case, declared a mistrial and asked U.S. Supreme Court Chief Justice John Roberts to appoint a panel to investigate his own conduct.
Justice Roberts quickly asked the 3rd Circuit Court of Appeals’ chief judge, Anthony Scirica (not to be confused with Watergate judge John Sirica), to create a five-judge investigative panel. It includes Marjorie Rendell, wife of Democratic Pennsylvania Governor Ed Rendell. She once joined a majority decision in favor of letting federal prisoners receive porno magazines, and she and Scirica were part of a trio of judges who recently tossed the FCC fine against CBS for Janet Jackson’s breast-baring at the Super Bowl.
While these decisions may auger well for Kozinski, he hired Mark Holscher, a high-powered white-collar criminal defense attorney. (Past clients: Enron’s Jeffrey Skilling, California Congressman Duke Cunningham and Los Alamos scientist Wen Ho Lee.)
No one’s predicting how the judicial panel’s investigation will turn out. “It’s rare, it’s rare, it’s rare,” says law professor Rebecca Lonergan, a former federal prosecutor now at USC, that federal jurists judge their own. “Federal judges don’t usually get themselves in trouble.”
TO SOME, KOZINSKI’S LIGHTNING-QUICK recusal, along with his calling a mistrial and asking for himself to be investigated, looked like rash decisions that placed Isaacs in a double-jeopardy position, should the government press for a retrial — which it later did.
In his July 24 motion for dismissal of the charges against his client, Isaacs’ attorney, Roger Diamond, rests his argument precisely on double-jeopardy grounds and further claims, “There was no reason for Judge Kozinski to recuse himself since he had done nothing wrong.” Although Lonergan believes Kozinski’s moves were correct, she admits “It is unusual for [judges] to pre-empt litigants” in seeking recusal.
The Scirica panel hasn’t convened yet. It has the option of using investigators, or it can simply hold private hearings and issue a decision. It can issue a private letter of censure, a public reprimand or a clean bill of health.
“They have no power to remove him,” says UCLA law professor Eugene Volokh, who counts himself as a personal friend of Kozinski’s. “Federal judges have life tenure, [although] a negative report could cause him to step aside as chief judge.”
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An oft-quoted Kozinski line comes from his instructions, in a 2002 Barbie-doll copyright case, for both sides “to chill.” Now that the clamor surrounding Kozinski has chilled, the misconduct case against him doesn’t seem to measure up to the initial hype. At first, the national media repeated the Times’ less-than-full descriptions of Kozinski’s collection (“naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal”). It later turned out to be bad-humor porn, not the kind they sell.
In addition, Kozinski’s supporters say his alex.kozinski.com site included family photos and his speeches and was not really a Web site but a private file server. However, it had a security flaw that allowed uninvited eyes into the site, although Kozinski’s detractors doubt the judge really cared who entered.
“It never struck me that Alex has been very much concerned with shame,” says Loyola law school professor Stan Goldman, a UCLA-law classmate of Kozinski’s. Not that Goldman thinks the judge’s naughty picture collection will really hurt him.
“It may,” says Goldman, “affect the number of his speaking invitations.”