Is the Ira Isaacs Trial Over?

LOS ANGELES - Is the Ira Isaacs trial over?

"That's a very good question," declared Roger Jon Diamond, Isaacs' attorney. "You would think, after reading the various news media, that it is, but I'm not so sure."

Although it had been widely reported that the Isaacs case had become a mistrial, Diamond called attention to the Order issued this afternoon by Judge Alex Kozinski, who had been the trial judge on the case, having managed to take that duty away from Judge George H. King, who had originally presided. It is unclear how and why that change took place, though it may have had something to do with Judge Kozinski's other position as Chief Judge of the Ninth Circuit Court of Appeals.

But Judge Kozinski has been under extreme media scrutiny for the past two days for having owned a Website containing sexually explicit photos, which Kozinski has claimed he did not know could be accessed by the public. But all the attention that's been paid to that site led the judge to say Wednesday afternoon that he was considering recusing himself - that is, removing himself as the judge handling the case - and this afternoon, actually issued such an Order.

However, what the Order, which is titled "Order Recusing," actually says is, "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."

So now the question becomes, does "manifest necessity" translate, legally, into an actual Order of Mistrial, or was Judge Kozinski merely recommending that whichever judge succeeded him on the case make such a declaration?

Obviously, Judge Alicemarie H. Stotler, Chief Judge of the Central District of California, took it to mean the former, since she stated in an Order issued later this afternoon, "A mistrial having been declared by the transferee judge, and the transferee judge having thereafter recused himself, IT IS HEREBY ORDERED that, in accordance with the usual transfer procedures of this Court, the above-entitled case is hereby returned to the calendar of the Honorable George H. King, U.S. District Judge, for all further proceedings."

Diamond, on the other hand, doesn't know just what has happened.

"He didn't declare a mistrial; he simply said there's a need to do it," Diamond said. "But in any event, along these lines, the Clerk of the Court, his clerk, the floating clerk that was assigned to him, in my opinion, has construed it the same way, because she either did on her own or was instructed to call all the jurors and tell them not to show up on Monday."

As things had been left Wednesday afternoon, the jury had been told to return to the auditorium of the Ninth Circuit's Pasadena offices at 9:30 Monday morning to complete the showing of Mako's First Time Scat 2, whose playing was interrupted at about 5:30 p.m. Wednesday. If things had followed their intended course, the jury would then have been shown the final charged movie, Hollywood Scat Amateurs 7, and thereafter returned to Courtroom 1600 in the Roybal U.S. Courthouse in downtown Los Angeles for the completion of testimony.

So what will happen on Monday? "Nothing. There's nothing on calendar," Diamond said.

"I think that it [a mistrial] was not declared properly," Diamond continued, "but the court apparently, including Alicemarie Stotler, has construed what Kozinski did as a declaration of a mistrial, but I think technically he didn't do it, but it's been construed that he did."

There are grave legal ramifications to the apparent course of events, one of which is that the government may no longer be able to pursue its case against Isaacs. Since the trial had begun, and a jury sworn in and heard testimony, "jeopardy" has "attached" to the case, and in some circumstances, an interruption of the proceedings at this point and the dismissal of that jury may put Diamond in a position to move for an "order of acquittal for double jeopardy."

"We'll wait to be told what to do from somebody," Diamond told AVN. "Presumably - and this is just my guess but it's probably accurate - Judge King will send out an order directing the parties to come to his court for a status conference. I would assume that would be the next step. As to what the status of the case is, in my opinion, the double jeopardy clause of the U.S. Constitution would bar a retrial."

That clause, which is part of the Fifth Amendment, states, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

"We didn't ask for the mistrial," Diamond said, "and under the Federal Rules of Criminal Procedure, in order for the judge to declare a mistrial, he has to first give the parties an opportunity to express their views as to whether he should do so, and he hasn't done that."

Diamond noted that during Wednesday's hearing, after prosecutor Ken Whitted had asked for a 48-hour postponement of the proceedings so that he could research the possibility of asking Judge Kozinski to recuse himself over the Website issue, Judge Kozinski had said, "My personal preference would be to walk away" from the trial - that is, recuse himself voluntarily - but he did not at that time definitely say that he would do so. In response to Whitted's motion to delay the trial, however, Diamond had stated on the record, "We oppose the government's request."

"It's clear on the record that I objected to any recusal at all; clearly implied that there should be no mistrial," Diamond reiterated today. "We never consented to it, and I don't think the government intended to seek a mistrial. What I thought was going to happen if the judge granted the recusal motion, my expectation was, if it had been granted over our objection, I was planning to file a brief to oppose the government's motion."

However, Kozinski short-cut the government's plans by voluntarily recusing himself, which in some ways made the trial a whole new ballgame.

"I thought, if he were going to do that, what would happen was on Monday morning," Diamond continued, "there would be a new judge sitting there instead of Kozinski, with the same jury, and the new judge would say, 'I've looked at the movies, I've read the transcript of the testimony' - which wasn't very long; it was only about an hour of testimony - 'I'm fully caught up. Proceed.' I thought that's what would happen."

But if, as Judge Stotler has interpreted, a mistrial has been declared, the legal process has been thrown into chaos.

"I would have opposed it [a mistrial] had I been given the opportunity," Diamond said, "and the fact that I wasn't given that opportunity I think means that jeopardy has attached to the proceeding. I don't know what the opposition will argue. I'm sure Judge King will call for briefing on this issue."

"The issue of the mistrial is complicated," he continued. "I had offered, actually, to stipulate to a mistrial this morning, which would have preempted my argument on double jeopardy. I basically offered to stipulate to a mistrial providing the retrial were next year, and that was immediately rejected by Mr. Whitted, who was in consultation with [Obscenity Task Force Director] Brent Ward. All Whitted would say was this morning was, 'The director says no. The director says no.' It was very scary; I thought I was in some kind of futuristic movie. The way he talked was scary: 'The director says no.'"

"If a mistrial has been declared, I don't think they can undeclare a mistrial, but maybe they could," Diamond pondered. "I don't know. It's a procedural mess. I don't know whether the government can appeal the order granting the mistrial. They would of course need an emergency stay, and they would need some kind of order keeping the jurors around. I don't even know whether Whitted is going to try that or not."

"Anyway, as far as I know, there is no proceeding Monday morning in Pasadena. We will not see the end of the movie. We will not know how that movie ends," Diamond chuckled. "I hope the jurors won't be too upset about that."