LOS ANGELES — All things considered, Judge Alex Kozinski may come away from the Ira Isaacs obscenity trial worse off than his former defendant.
"I think Kozinski has been unfairly linked to Isaacs' material," opined Isaacs' attorney, Roger Jon Diamond, "because Isaacs' material has been so graphically described in the media after it was shown in court."
The link was almost inevitable since the mainstream media, with its self-imposed censorship of sexually explicit terms, does not have the language necessary to describe the differences between the depictions in the movies Isaacs is charged with selling — a woman fellating a pair of horses, maneuvering underneath one and sticking its cock into her pussy, followed by some obviously faked cumshots; and a Japanese woman being fucked in various positions, slapped, pissed on, then fed her own shit — and the relatively mild material on Kozinski's own site, which included widely-available photos of women's crotches displaying "cameltoes," women on all fours body-painted to look like cows, and a "bestiality" video of a man in a field trying to take a piss while simultaneously attempting to fight off an attacking donkey. The LA Times also claimed that the site contained "images of masturbation, public sex and contortionist sex;" "a slide show striptease featuring a transsexual;" "a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair;" "two women are sitting in what appears to be a cafe with their skirts hiked up to reveal their pubic hair and genitalia. Behind them is a sign reading 'Bush for President;'" and either a photo or video of "a young man ... bent over in a chair and performing fellatio on himself."
Kozinski's wife Marcy Tiffany disputed the idea that the material was part of a website at all, writing on the website patterico.com that it was simply "a bunch of random files located in one of many folders stored on our family's file server."
Attorney and internet commentator Lawrence Lessig put it this way:
"Here are the facts as I've been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski's son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.
"Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinskis have a den in their house. In the den is a bunch of stuff deposited by anyone in the family — pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: 'Hey look,' he says, 'look at the sort of stuff the judge keeps in his house.'"
(The "disgruntled litigant" was attorney Cyrus Sanai, who's had some long-running legal disputes with Kozinski.)
But the mere existence of, much less availability of, such material on a site linked to Kozinski's name was enough to cause Kozinski to recuse himself from the Isaacs trial, as reported here on Friday; for the Chief Judge of the Central District of California to interpret some of Kozinski's words as a declaration that a mistrial had been ordered in the case; and for Kozinski himself to request of U.S. Supreme Court Chief Justice John Roberts that a panel of appellate judges outside the Ninth Circuit (of which Kozinski is Chief Judge) be convened to investigate whether Kozinski had committed any unlawful acts with respect to the Isaacs trial.
According to the Associated Press, "Named [for the panel] were the chief judge for the 3rd Circuit Court of Appeals, Anthony J. Scirica; two other 3rd Circuit Court judges, Marjorie O. Rendell and Walter K. Stapleton; and two chief U.S. District Court judges, Harvey Bartle III of Pennsylvania and Garrett Brown Jr. of New Jersey." Attorney Howard Bashman, who writes the website howappealing.com, added, "Judge Rendell is the wife of Pennsylvania's governor, and Judge Stapleton, based in Wilmington, Delaware, is a senior status Third Circuit judge. Chief Judge Bartle serves on the Philadelphia-based U.S. District Court for the Eastern District of Pennsylvania."
Needless to say, once the story of Kozinski's porn interests broke, religious conservatives moved in for the kill.
"[Americans], like FRC, believe that Kozinski is ill-equipped to try an obscenity case when he clearly does not understand the definition of obscene," wrote Tony Perkins, president of the theocon-oriented Family Research Council. "We call for his recusal in this case and a reexamination of his fitness as chief of one of the most important courts in the entire nation."
"I'm certain we don't care to know the state of Judge Kozinski's odd interests but it speaks volumes about where we are as a culture today," opined Justin Hart on the Heritage Foundation's townhall.com website.
And from Cloud Cuckoo-land:
"This pervert judge should be arrested and frog-marched in an orange jumpsuit right into a federal prison to await a trial of his own," wrote Joseph Farah of the reactionary-right WorldNetDaily. "In the meantime, if he doesn't immediately resign in disgrace from the bench, he should be removed for cause as judges and most public officials have the privilege of serving the people while they conduct themselves professionally, ethically and morally ... [T]his, my friends, is how Western Civilization ends. This is how we continue to define deviancy down. This is how the lowest common denominator sets the standard of morality and legality in our once-great country ... Kozinski is the personification of what our culture has become."
However, as Deputy Federal Public Defender Lara A. Bazelon wrote on the LA Times website, those calling for Kozinski's removal over the material will likely be disappointed.
"Impeachment is the only way that a federal judge may be removed from office," Bazelon noted. "It is a highly cumbersome process that requires a two-thirds majority of the U.S. Senate to conclude that a judge engaged in 'high crimes and misdemeanors.' There is little chance that Kozinski's conduct, however distasteful, meets that standard."
However, she did agree that Kozinski could be disciplined by the Third Circuit investigative panel, possibly for having violated Canon 1 of the Code of Conduct for Federal Judges, which states that a "judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."
But if what will happen to Kozinski is still up in the air, that uncertainty is multiplied several times for Ira Isaacs. As things stand now, the jury that was hearing his case has been dismissed by the Central District's Clerk of Courts, which means that a mistrial in his case has been officially and irrevocably declared, and the new judge on the case, George King, has scheduled a status conference for June 30, which date Diamond told AVN would likely have to be changed because of Diamond's prior commitments.
"I think, at the first status conference, the attorneys will just discuss what to do next," Diamond explained. "That's the time that I would formally raise the issue of my Motion for Acquittal for Prior Jeopardy, but I'm trying to convince the prosecutor [Ken Whitted] to voluntarily dismiss [the charges] without having to file a formal motion. Based upon the research I've done, I believe we have a very good double jeopardy motion, and if the government agrees, there's no need to file one; they could just voluntarily dismiss the whole case. I don't know if they'll do that; I don't know what they're going to argue.
"Generally, in law, there's no appeal from interlocutory orders; usually, you have to wait until a final conviction before you can appeal something," Diamond continued, "but double jeopardy is one of the few areas of the law where they allow an appeal before you have the second trial, the theory being the trial itself is the damage that you suffer if your double jeopardy rights are violated. So if I were to file a motion to dismiss on double jeopardy grounds and that motion were denied, I could appeal the denial before there was a retrial. They wouldn't force me to go through the trial and then appeal."
But that's not the only issue that Diamond will raise at the status conference.
"One of the things I'm thinking about is to ask Judge King to list what his reading preferences are," Diamond revealed, "what he does or does not view, what he looks at in terms of movies or magazines or pictures, and I would be doing it not so much for him as to make a point, which is no judge should have to go through that. What's fair for one side is fair for the other; if they can find out — and they did, obviously, here — whether Kozinski reads stuff that is sexually explicit or erotic, then why can't I find out who deliberately avoids that sort of material, to show that he's prejudiced the other way?"
Psychologist Dr. Marty Klein raised exactly that point in his recent posting on his blog, Sexual Intelligence:
"A judge owns a car and drives it legally," Klein wrote. "Should she be allowed to preside over a trial that will determine if a car was used illegally?
"A judge collects guns, even displays his collection on his website. Should he be allowed to preside over a trial that will decide if a gun was used illegally?
"A judge belongs to a religion which believes that masturbation is a sin, using pornography is a form of infidelity, and sexual purity is the battleground between God and Satan. Should he be allowed to preside over a trial that will establish if something's obscene?
"Answers: Of course, of course, and of course — if we believe in the integrity of the judicial process.
"So why can't a judge who owns a porn collection preside over an obscenity trial?
"Answer: Because when it comes to 'obscenity,' the judicial system isn't fair."
Klein goes on to take several commentators to task, including California Sen. Dianne Feinstein, who charged, "If this [website content] is true, this is unacceptable behavior for a federal court judge."
Responds Klein, "Demanding Kozinski's recusal from the Ira Isaacs obscenity trial — indeed, questioning his fitness to be a judge altogether — is a fundamental failure of faith in American democracy."
Truer words ...
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