PASADENA, Calif. — Judge Alex Kozinski, chief judge of the Ninth Circuit Court of Appeals and the presiding judge in the Ira Isaacs obscenity trial, has agreed to the government's motion to suspend the trial until Monday morning in order to give the Justice Department time to consider whether to ask the judge to step down from the case, following reports that Judge Kozinski has maintained a personal pornographic website.
The shit hit the fan just before 2:30 this afternoon.
"Did you hear the news?" asked defense attorney Roger Jon Diamond. "The LA Times is reporting that Judge Kozinski has a personal website that's full of porn!"
The statement was made just outside the Ninth Circuit's Pasadena headquarters, where Judge Kozinski has offices, and to which he had asked the jurors in the Isaacs trial to adjourn after their lunch break in order to play the movies at issue in the case. The judge was dissatisfied with the audio-visual systems available at the Roybal U.S. Courthouse in downtown Los Angeles.
Before the jury was convened for the afternoon's viewing, however, the judge raised the issue with Diamond and prosecutor Ken Whitted.
"I want to take up the story in the LA Times this morning," he said. "I don't have any comment on the story. I just want to let you know that I didn't know about it [the article] before the jury was sworn in or I would have told you ... I found out about it yesterday after court ... and I want to give the parties the opportunity to think about whether they wish to disqualify me."
"I will state that right now, we are conferring internally within the Department of Justice about what position we should take if at all, and I think we will have a response tomorrow," Whitted answered.
"We would oppose disqualification," Diamond stated.
The judge refused to comment further about the Times story, which reported that the material on the judge's website, which has now been taken down, included "a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal," as well as "images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women's crotches as seen through snug fitting clothing or underwear. There were also themes of defecation and urination, though they [were] not presented in a sexual context."
That last point is particularly significant, because two of the movies at issue in the Isaacs case, Mako's First Time Scat 2 and Hollywood Scat Amateurs 7, deal with defecation and urination themes, though the third charged movie, Gang Bang Horse Pony Sex Game, does not. Earlier today, the judge had given the jury some "pre-instruction" on the Miller test for obscenity, noting that in order to find the defendant guilty, they must find that the material, taken as a whole, appealed to the prurient interest of either the average adult in contemporary society as a whole or of a deviant sexual group; that it depicts or describes either sex or excretory functions in a patently offensive way — "You may not use your own standards" to make that determination, he warned — and that the material lacks serious literary, artistic, political or scientific value.
"The ideas need not have majority appeal to be protected," he noted, declaring that the government must prove the absence of such value, just as it must prove, beyond a reasonable doubt, the existence of prurient interest and the patent offensiveness — otherwise, the jury would be duty-bound to acquit the defendant.
Both sides gave their opening statements this morning, with Whitted describing the acts depicted in the movies as "vile, perverted and profane," and claimed that "no reasonable person would find that they have any literary, artistic, political or scientific value."
Diamond responded by noting that the materials do indeed have value for some members of the community, which he judged to be "nine or 10 percent of the population," in that they are "therapeutic, because it helps them have sex. ... It helps them know psychologically that they are not alone in the community." While admitting that the movies "are disgusting to most people," he said he would show that they have serious artistic value as "shock art," a genre to which Isaacs himself will testify as an expert.
The jury also heard FBI agent James Myrick describe how, as part of the Justice Department's Obscenity Task Force, he and fellow agents combed the internet in search of "extreme material;" how they found Isaacs' websites scatcinemax.com, scatmovies.com and stolencarfilms.com, ordered several DVDs, and eventually searched Isaacs' offices and interviewed himself and his employees, leading to a January 2008 indictment.
The jury also heard briefly from Isaacs' former employee Brandi Krieger, who uploaded images and video to Isaacs' websites, wrote ads on Craigslist seeking performers for his movies, and designed e-mail solicitations for the movies.
After the judge's brief hearing regarding the controversy over his website, he brought the jury into an auditorium in the Ninth Circuit building, and began playing the Gang Bang Horse video, which featured a busty woman attempting to jack off and blow the cocks of two horses, then reclining on a bale of hay under one of the horses and forcing its flaccid cock into her pussy. The action resulted in what appeared to be several faked cumshots.
After a short recess, the jury then reconvened to watch Mako's First Time Scat 2, which featured the titular performer being spanked, slapped, forced to drink her partner's pee, peeing into a bowl and having her own urine poured over her ass, after which she had sex in several positions. She was then ordered to defecate in a bowl, was given an enema in order to bring out more feces, which she then peed on, and after her partner mixed it all together in a bowl, he fed some of the mixture to her, which she swallowed. The video ended with Mako smearing the remaining feces all over her body and in her hair.
The judge interrupted the playing of the second movie at about 5:30 p.m., and had the jury leave the room. It was at that point that Whitted moved that the trial be suspended for 48 hours because, he claimed, he needed time to research the "potential conflict of interest" posed by the judge's website, which "reportedly [had] the same or similar material as here," and to decide if the government would move to have the judge step down from presiding over the case.
"We oppose the government's request," Diamond responded. "We're confident the court can go forward. ... The court has done nothing wrong. I think it's a big whoop-tee-do about nothing."
However, after conferring with his client, Diamond then announced that he would support the government's request, as long as arrangements could be made to reschedule his expert witness, Dr. Mahan Nair, who had been set to testify Thursday afternoon.
The judge seemed very concerned over the news reports, which he no doubt realized could have far-reaching effects on not only this trial, but his entire career as chief judge of the Ninth Circuit.
"My personal preference would be to walk away" from the trial, he said at one point, but ultimately agreed to simply suspend the proceedings until Monday morning.
The developments had been covered by several of the local television stations, and after court adjourned for the day, Diamond and Isaacs took part in an impromptu news conference outside the Ninth Circuit courthouse.
"I believe Judge Kozinski is neutral," Diamond declared. "There's no crime in possessing pornography in private," referring to the judge's claim that he had not known that his website was viewable by the public.
"I view this case more as a challenge to Congress' right to pass these laws," he added when asked about his reaction to having viewed the movies.
"I have a legal product; it's legal to possess it," Isaacs stated. "If this was a sculpture that I did of people defecating on each other, we wouldn't be here. ... This is intimidation by the government. I'm just trying to start a dialog. It's shock art. [Art] is supposed to disturb; it gets a reaction."
"Do you want an America where artists are afraid to do art?" he asked. "Do you want the government to decide what art is?"
Then referencing an "art project" he had seen on the internet, where a man was purposely starving a dog, he contrasted that with his own situation, noting that, "Since there's no sex in it, nobody has a problem."
"I think it's ridiculous that the government is going after [what] consenting adults [watch]," he concluded. "Popular speech doesn't need protection, but I do."
Court will reconvene in Pasadena at 9:30 on Monday morning, when Whitted is expected to present a motion for Judge Kozinski to recuse himself from the case.
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