Update: Judge Says, "Well Rec-u-u-u-se Me!"
A 50-word fax sent from Judge Alex Kozinski this morning has effectively ended the current obscenity trial of U.S v. Isaacs.
“In light of the public controversy surrounding my involvement in this case, I have concluded that there is a manifest necessity to declare a mistrial. I recuse myself from further participation in the case and will ask the chief judge of the district court to reassign it to another judge.”
Since Wednesday morning, when an L.A. Times story disclosed that Kozinski operated a Web site filled with salacious photographs and copyrighted MP3 music files, the trial of scat film maker Ira Isaacs has been thrown into chaos. After having jurors sit through two and a half hours of films depicting bestiality and a woman forced to eat her own feces, the judge sent them home late Wednesday afternoon and invited the prosecution to spend the next 48 hours to do research and decide whether or not to make a motion to remove him from the trial.
Kozinski's fax arrived late Friday morning, whereupon Isaacs' attorney, Roger Diamond called a press conference at his Pacific Palisades home – at the same time Diamond's somewhat displeased wife was sponsoring a luncheon featuring Congressman Henry Waxman.
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Diamond, brandishing a copy of the judge's fax, said Kozinski had recused himself “over our bitter objections.” Diamond had, the day before, told the L.A. Weekly that the defense would object to any mistrial declaration that did not move a retrial to 2009 – after the Justice Department's Anti-Obscenity Task Force's mandate expires. While admitting that the prosecution has not triggered a double-jeopardy situation for his client, Diamond noted that now the government was theoretically free to put this trial behind it and indict Isaacs on brand-new charges related to his sale of allegedly obscene DVDs. (When the trial began Diamond had clearly been pleased that Kozinski, a well-known defender of individual rights, was serving as its judge.)
He also said that Kozinski's statement did not unambiguously declare a mistrial – only the “necessity to declare a mistrial.” Diamond further claimed that, although the jury had been dismissed, he could not say if it was permanently removed from deciding the case. So much, in fact, remains uncertain as a result of the wording of Kozinski's statement.
USC law professor Jean Rosenbluth, a former federal prosecutor, said there has been no definite word on the jury's dismissal, nor even if the government prosecutor, Kenneth Whitted, had filed a motion regarding Kozinski, one way or the other. She also found very little precedence in determining the trial's next step.
“Ninety-nine percent of the time," Rosenbluth said, "double jeopardy means you can't retry someone if they are acquitted. Also, it [pertains to cases] in which the prosecution has caused a mistrial. But that doesn't seem to be the case here.”
Rosenbluth speculated that it may be possible for the trial to resume with the current jury if a new judge is brought in soon. Still, she noted, this could entail problems, since any new judge would not have the experience of this jury's selection nor of the first day of testimony that occurred Wednesday morning.
The Justice Department is said to have set the trial of Ira Isaacs in Los Angeles, the capital of the adult-entertainment industry, to make a point. If this is so, Kozinski's predilection for pornographic imagery has taught the government a hard lesson in how life imitates art in California.
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