The Beverly Hills lawyer who blew the whistle on Judge Alex Kozinski’s Web site, which featured both explicit sexual pictures and possibly illegal MP3 music files, had been approaching newspapers about the story since January of this year.
“I’ve been trying to shop this out for six months,” Sanai says. “The legal press wouldn’t touch it because Kozinski’s involved. I had contacted Henry Weinstein at the L.A. Times but he took a buyout before anything could happen. The Daily Journal was going to run it but they killed it – [an editor] told me, 'I will never allow it unless you can show it’s straight child porn.'
Daily Journal editor Martin Berg remembers the circumstances of Sanai's offer differently.
“He presented us,” Berg says, “with screen grabs of a Web site that had been taken down. We could not independently verify that these images were real or were linked to a Kozinski Web site. Here’s a guy with an obvious beef against Kozinski, so we decided to pass on it.”
Sanai had a feud with Kozinski, who is the chief justice of the U.S. Ninth Circuit Court of Appeals, that stemmed from a divorce case involving Sanai’s parents. In 2005 Kozinski breezily dismissed the lawyer’s published claims that the Ninth Circuit had jurisdiction in certain state cases. That dismissal appeared in print and online with additional case materials linked to Kozinski’s personal Web site, alex.kozinski.com. Sanai’s interest in the site was aroused when he tried to access it one day and found it had been taken down. Then, more than a year later, on Christmas Eve of 2007, Sanai found the site was back online.
“Santa Claus gives me a present – one directory had tons of porn!” Sanai says of Kozinski’s site. “And this isn’t Jenna Jameson and Ron Jeremy stuff, the normal guy-meets-girl in a Laundromat porn. It’s all deviant!” The site featured photographs of nude women painted as cows, auto-fellatio, defecation and a host of other non-Jenna Meets Ron situations.
Sanai says he found no takers for the story or the CDs he’d filled will images from the site. Then, on June 8, the Sunday before jury selection in the U.S. v. Isaacs obscenity trial of video maker Ira Isaacs for distributing bestiality and scatological pornography, he read an article about the case in the L.A. Times by Scott Glover, who was covering the trial. Sanai contacted him and this past Monday gave him a CD. The Times found additional embarrassing material on Kozinski’s site and by Tuesday Glover was interviewing Kozinski about his Web site – on which the judge quickly pulled the plug. The next day Glover’s story appeared and by day’s end Kozinski had granted prosecutor Kenneth Whitted’s request for a 48-hour suspension of the trial so that the Department of Justice could research the disclosure’s ramifications.
The most discussed possibility is for Kozinski to recuse himself – which on Wednesday he openly said he would agree to if asked by the prosecution. Recusal would entail finding a replacement judge quickly enough to keep the current jury intact. Another option is a mistrial, which poses problems for the prosecution, which risks placing Isaacs in double jeopardy; on the other hand, the defense doesn’t want to see an exit of the libertarian Kozinski, who is widely regarded as its dream judge.
“The defense will not agree with a mistrial unless the case will be put off until next year,” says Isaacs’ attorney, Roger Diamond. “Without our consent a mistrial cannot be declared. We would argue for a dismissal.” Diamond says he’d want any new trial to be held next year, after the anti-porn-obsessed Bush administration leaves and, with it, the Justice Department’s anti-obscenity task force that prepared the case against Isaacs.
Apart from taking a PR pratfall, it’s not clear if Kozinski’s salacious Web site represents anything illegal – or actually poses a threat to the prosecution’s case against Isaacs.
Scott Bice, a senior law professor at USC and onetime clerk to former U.S. Supreme Court Chief Justice Earl Warren, says the line between legality and illegality in Kozinski’s case is as fine as it is between obscenity and protected speech. He told the L.A. Weekly that in the Isaacs trial the Justice Department may feel the Web site indicates an unacceptable predisposition toward the defendant.
“I think the theory,” Bice says, “is that this is a prosecution for obscenity — and if the judge himself has posted material close to what the trial is about he would be sympathetic to the defense. He could communicate this in his jury instructions and in subtle things like facial expressions.”
Bice, who knows Kozinski, cannot explain why the judge would have placed himself in this situation.
“Alex Kozinski,” Bice says, “is well-known as a highly intelligent guy — a highly respected judge known for strong opinions. This kind of thing is surprising in light of what one knows about him. It’s obviously an embarrassing turn of events. Most judges really try not to even have an appearance of bias. That’s why judges recuse themselves before trials begin.”
Sanai says he only met Kozinski once – when, 18 years ago, he interviewed the judge for the New Republic, which ironically, Sanai claims, rejected the profile he submitted as too flattering. Today Sanai accepts no blame for the Isaacs trial’s turmoil or the personal fallout swirling around Kozinski that Sanai’s revelations have produced.
“This is all self-mutilation,” Sanai says of Kozinski. “He’s an amateur porn distributor. If he survives this it’ll depend on whether he tries to cover it up or comes clean. He has the temperament of a 14-year-old boy trapped in the body of a 57-year-old man.”