LOS ANGELES - When we last left Ira Isaacs' obscenity trial, Judge George H. King had ruled that Ninth Circuit Chief Judge Alex Kozinski had recused himself from the proceedings and declared a mistrial in the case after the Los Angeles Times exposed Kozinski's softcore porn website.
If Kozinski did not properly declare a mistrial, then Isaacs cannot be tried again because of the Fifth Amendment's double jeopardy clause. Kozinski is now under investigation by a panel of Third Circuit judges, who will examine his conduct in the Isaacs case and make recommendations which might result in Kozinski being censured. In the meantime, Isaacs' attorney, Roger Jon Diamond, timely filed his appeal with the Ninth Circuit -- and that's when things started to get weird(er).
In early November, Justice Department attorneys Matthew W. Friedrich and Michael A. Rotker wrote letters to each member of the Ninth Circuit Court of Appeals - all 26 of them - asking them to recuse themselves from hearing Isaacs' appeal and from participating "in any proceeding in which [their] impartiality might reasonably be questioned," simply because Kozinski himself was under investigation for possible improprieties involving the website.
The prosecutors' letter was not in the form of a motion, so the Ninth Circuit judges weren't required to do anything about it - and apparently, they haven't, since they established a briefing schedule for the parties to follow in order to perfect Isaacs' appeal.
"I don't think any of the judges bothered with that; I don't think they even acknowledged them," Isaacs told AVN. "I think it just made them laugh and pissed them off even more that they would even disrespect the whole Ninth Circuit, claiming they can't be fair because they knew a guy - especially coming from the Bush administration, and this is the Ninth Circuit. Why these people did this, I can't imagine, unless they're thinking 'Let's just embarrass them.' I can't think what the strategy would be for a case that's going to be heard by the Ninth Circuit, where they're going to have to make their case, and offending all [26] of them by saying none of them could be fair, but that's what they did."
The prosecution did file one motion, however: To move the filing dates for the appeals brief and the government's response from March 1 to sometime in January.
"I have no idea why they did that, unless it was because they wanted to try to get everything done while Bush's people were still in positions at the Justice Department," Isaacs said. "But anyway, they were denied as far as moving up the date.
"So now, what happened was, they were supposed to have their paperwork in; by February 22, they were supposed to have their answer to why it's not double jeopardy, and they went for an extension for a month.
"Before, they moved on it very quickly; everything was very fast; everything was, 'We've got to do it now, now now.' Now, all of a sudden, everything slows down, and I think it's because they're waiting for the new Department of Justice and for everything to be settled. I don't think [Deputy Attorney General David] Ogden is going to keep these guys in the Obscenity Unit.
"Ogden is the day-to-day guy who runs the department, and he just got in, just got confirmed. [Extreme Associates' prosecutor Mary Beth] Buchanan is still in there, and others, so I think there's got to be more time before they get their shit together. They [prosecutors] have about a week left to file their response to our Motion to Dismiss, and we assume they're going to file it, but we don't know. Then we have two weeks on my end to make a response if we want to. But either way, the Ninth Circuit has to set a date to hear the case, and they could set it a year from now or six months from now. I don't think they're in a rush and I don't think the prosecution is in a big rush - after all, they just put it off for a month. I think the transition at the Justice Department is much slower than we think. Besides, I heard the Obscenity Task Force was supposed to be disbanded on January 20."
In fact, no such disbanding occurred, but the Task Force has been keeping a low profile since late last year, and is not even mentioned in the Justice Department's announcement of the guilty plea obtained in the Extreme Associates case earlier this month. But the future of the Task Force certainly is in question, since the DOJ, judging by its most recent press releases, now seems to be concentrating more on cases involving child pornography.
"Look, from everything I'm reading, Ogden seems to be a real civil liberties guy," Isaacs told AVN. "I think Ogden is going to look at all of this when he gets settled in there and is going to ask, 'Do we want to get involved in cases where it's just for adults?'"
No matter how the Justice Department responds to Diamond's Motion to Dismiss, Isaacs thinks the Ninth Circuit should wait a while before scheduling oral argument on the Motion.
"We're going to say they shouldn't do oral arguments until they decide the investigation on Kozinski," Isaacs said. "We're saying that should be completed before they hear oral arguments because that issue should be off the table. And then, even if we lose, we're going to go to the Supreme Court with it. Whether they'll take our petition, I don't know, but we're going to keep fighting this as long as we can."
