Judge Denies Mistrial to Isaacs

LOS ANGELES — Believe it or not, yet another phase of the Ira Isaacs obscenity trial has hinged on the sexual neuroses of the American people; specifically those who live in the Los Angeles area.

The topic is whether Judge Alex Kozinski properly recused himself from (that is, quit) Isaacs' obscenity trial, over which Kozinski was presiding, in light of a series of articles published in the Los Angeles Times which charged that a Website owned by Kozinski contained "images of masturbation, public sex and contortionist sex" as well as "themes of defecation and urination." Isaacs was on trial for three videos, two of which depicted women playing with and ingesting "excrement" — some apparently real and some simulated — and one depicting a woman attempting to have sex with a pair of horses, complete with faked ejaculations.

"[A] judge must recuse himself if a 'reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned'," wrote Judge George H. King in his Order Denying Defendant's Motion to Dismiss Indictment With Prejudice dated today. "In determining the propriety of Judge Kozinski's recusal determination under §455(a), we consider the entirety of the record because '[d]isqualification under §455(a) is necessarily fact-driven and may turn on subtleties in the particular case.' ... The record in this case includes the Times articles, the statements attributed to him in those articles, the court's two colloquies with the parties concerning the first Times article, and Judge Kozinski's June 12, 2008, order requesting that proceedings be initiated against him pursuant to Rule 26 of the Rules Governing Judicial Conduct and Disability." [Emphasis in original; citations removed here and below.]

Kozinski's own public statements about the issue have been minimal.

"Is it prurient? I don't know what to tell you," he told a reporter for the Times. "I think it's odd and interesting. It's part of life."

Later, he denied posting the material for public view, and that it was his son who actually did the posting.

In fact, the material was clearly not prurient, as anyone familiar with the far more explicit material produced by the adult industry can attest.

So that left the perception created in the minds of the Los Angeles area public by the L.A. Times articles, which gave the impression that the material on Kozinski's site was somehow comparable to what was portrayed in the videos Isaacs sold that were the subject of the trial — a perception that was clearly incorrect, and one that would suggest that a "reasonable person with knowledge of all the facts" would not conclude that "the judge's impartiality might reasonably be questioned."

"Those were the only facts in the record," noted Roger Jon Diamond, Isaacs' attorney. "He [Judge King] took judicial notice of the article, and I didn't really argue against that at the argument; I didn't want to argue that the article the government put into evidence for the motion issue — I didn't want to argue that that might have been a counterfeit article. I acknowledge that the article was a true article, but my argument was that the facts in it were wrong, and also that it was hearsay in any event, and he rejected that argument. He said that the article would be considered. I think he's wrong on that."

Indeed, Diamond argued that the material on trial and the material on Kozinski's site were far apart in terms of explicitness.

"Our argument was that there was no evidence that they were the same," Diamond recounted. "My position at the hearing was that the government had the burden of putting on the evidence of what it was about the site or Kozinski's statements that justified recusal; it was their burden."

"Judge Kozinski never said, 'I have to disqualify myself because I have the same stuff on my Website'," Diamond continued. "He never said that. His recusal order was one sentence; that it was 'because of the public controversy regarding my involvement in the case.' He didn't say, 'because I have stuff on my Website that's the same as on trial.' He never said, 'I'm guilty of what Isaacs is on trial for; I can't be impartial; I have to get out of this case.' He never said anything. What he said was, 'If either one of you wants a mistrial, or either one of you wants a recusal, I'll grant that request.' I said, 'No, that would be improper.'"

But Judge King ruled that even if the material on Kozinski's site was nothing like the material charged as obscene in the Isaacs case, that didn't matter.

"The purpose of §455(a) is to 'promote public confidence in the integrity of the judicial process'," Judge King wrote. "With that in mind, the question before us is not whether Judge Kozinski had any actual bias, either for or against Defendant or the Government, but whether a reasonable person with knowledge of all the facts would conclude that his impartiality might reasonably be questioned. Based on the subject matter of, and the statements attributed to Judge Kozinski in, the articles, Judge Kozinski's own statements relating to the articles made on the record, as well as his request for proceedings under Conduct Rule 26, a reasonable person, aware of all the facts and giving due regard to the nature and quality of those facts, would conclude that his impartiality might reasonably be questioned in this case. Therefore, based upon the entire record, taken in context and in its entirety, we find and conclude that Judge Kozinski's recusal was required by 28 U.S.C. §455(a)."

But it's that description of a "reasonable person with knowledge of all the facts" that continues to bother Diamond.

"What if this were a criminal trial taking place somewhere in the deep South back in the 1960s or '70s," posited Diamond, "and the case was a black man charged with murdering a white woman, and it came out during the trial that the judge, a white woman, was married to a black man? Would it be reasonable for anyone to object that the judge couldn't be impartial, that she might favor the defendant because her husband was black? We think nothing of interracial marriages today, but back then, it's almost certain that one or more of the jurors would have thought there was something wrong with that situation. But those jurors would be wrong ... and anybody who read the L.A. Times stories about Judge Kozinski's Website would have been equally wrong to think that because he liked sexual material, that he couldn't be impartial in the Isaacs case.

"What happens if we somehow wind up living in the Islamic Republic of the United States, and everybody's upset and they don't like judges; does that mean we go down to the lowest common denominator if the public is wrong or they're not tolerant? Or we go to a small community in Alabama or a small town in Alaska where they're real prejudiced? Are we governed by the lowest common denominator, if the prejudice is irrational?

"So it's an interesting issue," Diamond stated. "I think that if the article is wrong or even if the article is accurate but irrelevant, then the judge shouldn't recuse himself. So what if the people are up in arms because they're bigots, because they're prejudiced? Why should the courts cater to their error?"

But Diamond's questions went unanswered in Judge King's Order. Having made the finding that Kozinski's recusal was proper, the judge concluded that it required a mistrial, which Kozinski in his recusal order had termed a "manifest necessity" — but Diamond disagrees.

"Even assuming it [the recusal] was proper, we said that another judge could have stepped into the case immediately; there was no need for a mistrial, and Judge King rejects that," Diamond argued. "However, the judge did agree with my position that we didn't agree to the mistrial. That was one of the government's main arguments, that we agreed to it or we acquiesced to it or somehow we invited the mistrial. We did say we wouldn't mind a new trial next year, but they didn't agree to that; they didn't agree to the condition. The bottom line, therefore, is whether the recusal was proper."

Diamond also disagrees that the simple fact of Kozinski's recusal requires a new trial, and the basis for his position is ... Judge Kozinski himself!

"It's a case called U.S. v. Bonas," Diamond explained. "It was a case involving a still-sitting federal judge, Robert Takasugi, who in a criminal case, after the jury was sworn, after the trial began, took complaints from four jurors that they weren't getting paid by their employers to sit on the jury. Takasugi then declared a mistrial because of that reason, and said, 'Okay, we're going to have a new trial with a new jury.' The defense lawyer in that case made a motion to dismiss on double jeopardy grounds, and the question was, was there a manifest necessity to declare a mistrial? Judge Takasugi said, yes, there was, and denied a motion to dismiss, allowing a retrial. The defendant appealed that ruling. The Ninth Circuit, speaking through Judge Kozinski — he wrote the opinion — ruled that the basis for the judge's ruling was improper, and he ruled for the defendant, ordering Judge Takasugi to dismiss on double jeopardy grounds."

But Judge King didn't see it that way.

"Defendant argues that another judge could have completed the jury trial pursuant to [Federal Rule of Criminal Procedure] 25(a)," Judge King wrote. "We disagree. First, although disability brought on by death or sickness is within the scope of the Rule, a 'disability' arising from recusal would not likely serve the purpose of the Rule. In [U.S. v.] Jaramillo, the Ninth Circuit recognized this distinction in observing that '[n]either death nor a disabling sickness necessarily affects the integrity of all prior proceedings in the trial.' However, a 'disability' brought on by recusal 'directly implicates the character and integrity of the judge especially in relation to criminal proceedings, [and] the designation of another judge would not remove the appearance of partiality concerning all prior rulings and all actions of the [recused] judicial officer, from the inception of the trial.' ... To establish the appearance of justice under such circumstances, a new judge would necessarily be compelled to begin the trial anew."

Since Judge King's ruling is appealable, Diamond said he intends to do just that, and will file his Notice of Appeal within the next 10 days.

"I've already talked to Ira," Diamond said. "We're going to go ahead and file the notice of appeal. Then it's up to the Ninth Circuit in terms of the briefing schedule and the argument. They've been known to take as long as two years to decide cases."

But, noted Diamond, Judge Kozinski's permanent position as Chief Judge of the Ninth Circuit could create problems with that court hearing his appeal.

"I don't even know if the appeal can go to the Ninth Circuit or if the Ninth Circuit will transfer it to a different circuit, or bring in circuit judges from another circuit," Diamond speculated. "Maybe if no court has jurisdiction, maybe we would then go right to the U.S. Supreme Court. I really have to look into this."

In the meanwhile, Judge King's Order recognized the problem, and ruled that there will be no further proceedings in the case until Isaacs' appeal has been heard and ruled upon.