Diamond Moves to Dismiss Isaacs Indictment

LOS ANGELES — As AVN readers well know, shock artist Ira Isaacs' obscenity trial came to an abrupt halt on June 11 after it was revealed that the judge in the case, Alex Kozinski — also Chief Judge of the Ninth Circuit Court of Appeals — owned a website on which was posted some mild sexually explicit content and a lot of sexual humor.

With the following few days, Judge Kozinski filed an Order recusing himself from the trial and declared that there was a "manifest necessity" for a mistrial, which Judge Alicemarie H. Stotler, Chief Judge of the Central District of California, took as an Order granting such a mistrial.

Trouble is, that Order may not have been legal, and therefore, Ira Isaacs may find himself free of all charges on a technicality.

"The ground of the motion will be that the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes the retrial of Defendant Ira Isaacs," wrote Isaacs' attorney, Roger Jon Diamond, in his Motion to Dismiss filed on Friday. "Defendant Ira Isaacs, having been once in jeopardy, cannot be retried. There was no manifest necessity for the declaration of the mistrial, which was declared without Defendant's consent, without consultation, and under circumstances where the trial court improperly recused itself and, even if it did properly recuse itself, another judge could have replaced the recused judge."

As Diamond pointed out in his Motion, Judge Kozinski, in declaring the recusal and mistrial, apparently violated Federal Rule 26.3, which provides, "Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives."

But while Diamond argued that the declaration of mistrial was clearly improper, he also took issue with Kozinski's recusal of himself as the trial judge.

"In this particular case no one could have or should have reasonably questioned Judge Alex Kozinski's impartiality," Diamond stated. "All of the rulings he made in the case were based upon his understanding of the law.  Indeed, before Judge Kozinski disqualified himself he had made a number of rulings in favor of the prosecution. Judge Kozinski denied a motion by the defense to disqualify a prospective juror based upon juror bias.  The challenge for cause was rejected by Judge Kozinski. Over the objection of the defense, Judge Kozinski changed the word 'tolerance' to the word 'acceptance' with respect to the jury instruction to be given to the jury regarding the definition of obscenity.  The definition related to the issue of comparable materials in the community and how the community standard is to be determined. Judge Kozinski then gave the instruction to the jury. Judge Kozinski cut off attorney Diamond with respect to a certain portion of his opening statement. Numerous other rulings in favor of the Government were made during the portion of the case considered by Judge Kozinski."

Diamond went on to praise the impartiality of the jury, noting that the panel represented citizens from many different walks of life, and claimed that as they were being dismissed for the day on June 11 after having watched one of the charged movies and a large portion of another, "the jurors were heard to be laughing. ... Any defense attorney knows that a happy, laughing jury, is not a convicting jury.

"Had the defense been asked whether they were agreeable to a mistrial the defense most assuredly would have objected to the mistrial," Diamond continued. "There was no reason for Judge Kozinski to recuse himself since he had done nothing wrong. The Government should not have told Judge Kozinski that it wanted to consider a recusal motion. There was no basis for that. Judge Kozinski did state that if either side asked for recusal he would grant the request. Again, this is something to which the defense objected."

In arguing against Kozinski's recusal, Diamond used the example of a white female judge in Alabama in the early '60s presiding over a case involving a black man, an alleged bank robber, who's married to a white woman — a situation that at that time was illegal in the state where they got married, Virginia. In Diamond's scenario, a local newspaper reveals that the judge has been married to a black man herself, and that Alabama's white population believes that therefore, the judge will be biased in favor of the defendant, since her own husband is black.

Those familiar with the Isaacs case can immediately see where this is going. Add in the idea that the government, after presenting several witnesses in the case, asks the judge to recuse herself based on the newspaper revelation — even though there's nothing illegal or immoral in Alabama about a white woman being married to a black man. The analogy to Judge Kozinski being accused of moral turpitude for having a mildly sexual website, and being therefore asked to recuse himself, is clear — and, Diamond argued, just as inappropriate.

"In this particular case Judge Kozinski broke no law and did nothing improper," Diamond averred, noting, "The private possession of pornography is protected by the United States Supreme Court's decision in Stanley v. Georgia.

"If the Government is right — that it had the right to have a trial in front of a judge who has no interest in X-rated material or adult material — then conversely a defendant in Mr. Isaacs' position would have the right to have the trial in front of a judge who has never expressed opposition to X-rated materials," Diamond rightly argued. "That is, defendants in obscenity trials would have the right to be tried before judges who are not hostile to X-rated materials. If there are judges out there who have a policy of never reading adult material then a Defendant such as Mr. Isaacs would not want to be tried by such a judge and would have the right not to be tried by that judge."

Diamond drew the Court's attention to United States v. Nathan, where the judge was Richard Arcara, who'd made his reputation, while an Erie County, N.Y. district attorney, as an anti-porn crusader, and was himself a defendant (in his official capacity) in the famous obscenity case, Arcara v. Cloud Books. Diamond noted that the defendant in the Nathan case, Richard Nathan, though charged with obscenity, "never considered disqualifying Judge Arcara based on Judge Arcara's opposition to pornography, obscenity, and anything resembling adult material because presumably Judge Arcara would be able to set aside his own biases and prejudices and give the defendant a fair trial."

"Likewise, a judge who favors such material should also be permitted to sit in judgment in a case like this," Diamond continued, cautioning, "The defense does  not even concede that Judge Kozinski favors X-rated material. It was an irrelevant issue. There should be no inquiry into a judge's practices or personal preferences when it comes to judging a federal case. If Judge Kozinski properly recused himself no judge is safe with respect to these kinds of inquiries. Otherwise, we would want to know whether Judge [George H.] King, the successor judge to Judge Kozinski, likes or dislikes pornography. The defendant and the Government would have the right to know whether any judge has a position privately and personally with respect to adult materials. The defense would want to ask any new judge whether he or she has ever attended a strip club or viewed adult rated material. The defense would want to know what movies the judge reviews. Obviously this would not be proper.

"Defendant Isaacs should ... have his right to be free of double jeopardy because of the Government's heavy handed tactics," Diamond concluded.

But, Diamond continued, even if Judge Kozinski properly disqualified himself from proceeding further with the trial, the District Court should simply have assigned another judge to continue with the existing trial, as required by Federal Rule 25.

"It would not have taken long for Judge King or any judge to become familiar with the case," Diamond argued. "In particular, Judge King was already familiar with the case. Either Judge King or another judge could have obtained the testimony of the two Government witnesses, who were both very brief and, based upon the stipulation of the parties, were not even necessary. The Court had the benefit of the stipulation. The experts had not yet testified.  Judge King, or any new judge, could have simply watched the first movie, which took less than an hour, and could have watched that portion of the second movie that was shown to the jury. The Court could also fast forward the movie since the movie really did not have much of a plot. It would have taken at most an hour or so for the new judge to view the movies and would have taken the new judge only a few minutes to read the testimony of the two witnesses. The new judge would not have needed to observe the two witnesses because their credibility had not been challenged. This could have been done over the weekend so that on Monday, June 16, 2008 the jury trial could have resumed uninterrupted. At most there might have been a brief delay. None of these alternatives were explored by the Court."

In sum, Diamond argued that because of the procedural flaws which had taken place, the Court should dismiss the charges against Isaacs, and that if the government felt that such a dismissal was in error, could appeal that order to the Ninth Circuit Court of Appeals. He also pointed out several cases in which mistrials granted after a trial had begun or while one was in progress were proper, but none of those situations applied here.

Diamond referred specifically to the U.S. Supreme Court's 1971 decision in United States v. Jorn, where the Court ruled, "Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate. Applying these considerations to the record in this case, we must conclude that the trial judge here abused his discretion in discharging the jury."

The government will have two weeks to respond to Diamond's motion, and Diamond will have a similar period after that to challenge the government's arguments, until both parties appear before Judge King on Sept. 8 for final arguments on the motion. Look for AVN's report on the proceedings at that time.