Ninth Circuit Panel Hears Argument on Isaacs' Double Jeopardy

PASADENA, Calif.—The Ira Isaacs First Amendment case lurched forward another step today, as a three-judge panel of the Ninth Circuit Court of Appeals heard arguments on the issue of whether proceedings against Isaacs should proceed, or whether a retrial would be barred because the original trial judge, Alex Kozinski, who also serves as the Chief Judge of the Ninth Circuit, had either improperly recused himself from the case mid-trial and/or improperly declared a mistrial in conjunction with his recusal.

The hearing took place beginning at 9:30 a.m. in Courtroom Two of the Ninth Circuit's Pasadena headquarters, before Judges Harry Pregerson, John T. Noonan Jr. and Richard A. Paez. The Department of Justice was represented by Michael A. Rotker, and Isaacs by prominent First Amendment attorney Roger Jon Diamond. Isaacs himself was also present in the courtroom.

Central to the controversy was a telephone conference held on June 13, 2008, between Diamond; Rotker's predecessor, Obscenity Prosecution Task Force prosecutor Kenneth Whitted; and Judge Kozinski's law clerk. According to reports, during that conference, which was not recorded in any fashion, Whitted had stated that his office would move to recuse (essentially, "fire") Judge Kozinski from the case due to the fact that, just a few days earlier, it had been revealed that the judge maintained a website, which he thought was hidden from public view, which contained humorous photos and video clips of a sexual nature. When Judge Kozinski's clerk asked whether such a motion might be filed "under seal"—that is, not disclosed publicly—Whitted said that his office would not agree to that. Within hours thereafter, Judge Kozinski had, on his own motion, filed a letter of recusal with the Chief Clerk of the Ninth Circuit, and within that letter had stated that he felt that there was a "manifest necessity" also to declare a mistrial in the case.

In ordinary circumstances, if a trial already in progress—jury sworn in; witnesses heard—is halted for reasons beyond the control of the defendant, the government is barred from retrying that defendant under the Fifth Amendment's prohibition that "any person be subject for the same offense to be twice put in jeopardy of life or limb"—the so-called "double jeopardy" rule. One exception to that rule is if circumstances surrounding the stoppage of the trial were due to "manifest necessity"; in other words, reasons beyond anyone's control that would prevent the trial from proceeding. However, a mistrial is rarely declared without consultation between the trial judge and all of the parties involved.

"The Ninth Circuit, in [United States v.] Bates, gave four factors that a district court should consider in deciding whether to grant a mistrial," Diamond told AVN in an exclusive interview, "and the factors listed there were really not followed here. One is, you can't act abruptly; you have to act with due deliberation, and here, I believe the record shows, and I argued it well so the court understands it, Judge Kozinski acted precipitously on Friday, June 13, by declaring a mistrial and recusing himself without any discussion, no briefing, no meeting. The last time we met was on Wednesday, June 11, briefly, in a rush, in the middle of the auditorium where the movies had just been shown. We were not in his chambers, we were not in a courtroom setting, and I immediately stated we were objecting to recusal, we objected to mistrial—at least I got that on the record, but we didn't discuss plans, alternatives."

A report of the June 11 conversation can be found here.

What Diamond faced during the appeals hearing, however, was Ninth Circuit precedent in the form of United States v. Jaramillo, a 1984 case involving District Judge Harry Claiborne, who recused himself during Jaramillo's criminal trial, and at the same time declared a mistrial, because he had just been indicted for unrelated crimes. In that case, defendant Estella Jaramillo sought to escape retrial by claiming that Judge Claiborne had had no "manifest necessity" to declare a mistrial, and that therefore, jeopardy had attached to the prior proceedings, and to go forward with another trial would violate the double jeopardy rule.

It was during the Jaramillo appeal that the Ninth Circuit formulated guidelines regarding when a mistrial is a "manifest necessity" in light of Federal Rules of Criminal Procedure 25(a), which calls for a judge who is unable to proceed with a trial due to "death, sickness or other disability" to essentially allow the trial to proceed by turning it over to another judge within the district "who has familiarized himself with the record of the trial."

What Diamond faced, however, was the court's ruling in the final paragraph of Jaramillo: "Where, as here, the 'disability' directly implicates the character and integrity of the judge especially in relation to criminal proceedings, the designation of another judge would not remove the appearance of partiality concerning all prior rulings and all actions of the indicted judicial officer, from the inception of the trial. To establish the appearance of justice under such extraordinary circumstances, a new judge would necessarily be compelled to begin the trial anew. It is our view that Rule 25(a) did not provide Judge Claiborne with a practical or feasible alternative to the declaration of a mistrial in light of the historically unique problems he faced as a judge indicted on criminal charges which called into question his moral fitness to sit as a judge. Judge Claiborne did not err in failing to invoke sua sponte the procedure set forth in Rule 25(a)."

Of course, there are major differences between the Isaacs case and Jaramillo: Judge Kozinski hadn't been indicted for anything; it had merely been revealed that he owned a website that featured sexually explicit material—but not of a character that was "the same or similar to" the material at issue in the Isaacs case, as explained here. Moreover, it would have been easy for a new judge to continue the existing trial because, though in its third day, very little testimony had been taken.

"This is a perfect test case on that issue, because in this case, we already stipulated to all the facts, so there was really no need to put on any evidence other than the expert witnesses," Diamond explained. "The government chose on its own to call the FBI agent, whose testimony we didn't disagree with; he just testified factually what happened, and they put on Mr. Isaacs' employee. So we had picked the jury, we had made opening statements, the stipulation was read to the jury; all that really remained was to look at one more movie. We had already seen one complete movie and about half or two-thirds of a second movie, so all that remained was a third movie, and then the experts, and that was it, so this would have been the easiest case for a new judge to step in. And also, it just so happens that the new judge, [George] King, was the old judge, because he handled the case originally, so it was like the perfect set-up just to bring in Judge King. He was already on the case, so he was familiar with it; there was nothing really big happening, no complicated transcripts to read and review; all the facts were agreed to, so there was no question of reexamining the transaction, so if any case would allow for a judge to come in easily, this was the case. I made it all clear in the written briefs."

During the argument today, however, Diamond hit on two main issues: 1) That Judge Kozinski's recusal was unnecessary, and 2) that even if the recusal were proper, there was no "manifest necessity" for a mistrial.

"Is recusal really an issue here?" asked Judge Paez.

Diamond assured him that it was, because although Judge Claiborne was under indictment while presiding over the Jaramillo case, Judge Kozinski had merely been embarrassed by the L.A. Times article, and that it appeared to Diamond that the judge had only recused himself after Whitted refused, on June 13, to agree to seal the government's recusal motion. Kozinski filed his letter of recusal just a few hours after that telephone conference—seemingly a violation of the Bates "standard" regarding the abruptness of the decision. Also, Diamond noted, Judge Kozinski had appeared visibly upset during the June 11 conversation and seemed very concerned about the damage to his reputation that could have stemmed from the Times' revelations, but that there had been no substantive discussions about recusal, much less a declaration of mistrial, at any time up to Kozinski filing his recusal letter.

Diamond also made the point that since Kozinski knew of his own Web postings before the Isaacs trial even began, if he felt the character of his website material was in fact similar to the material at issue in the Isaacs case, he had plenty of time to recuse himself before trial began—and that since Kozinski's material was in fact very different from the movies charged in the Isaacs case, Kozinski should have had no fear that his continuing to preside over the trial would raise an "appearance of impropriety" in the minds of the public. Kozinski, Diamond argued, should have put the rights of the defendant above any personal discomfort he may have felt in having his website revealed publicly. Moreover, Diamond pointed out, the record of the proceedings up to the present contains no discussion of whether the public felt that Kozinski's activities were inappropriate, or whether he was therefore biased in favor of the defense—and that therefore, the appeals panel should not consider prosecution claims that there was public outry regarding Kozinski's continuing as the trial judge. Diamond noted that most of Kozinski's rulings during the trial had been in favor of the government.

When it came Rotker's turn to argue, he suggested to the panel that it should ignore the issue of whether Kozinski's decision to recuse himself had any basis in the trial record. "In theory," Rotker argued, the panel could second-guess Kozinski's reasoning, but in fact, Kozinski was entitled to his own basis for making the decision.

Rotker also took issue with defense claims that Kozinski made his decision under duress, noting that the government had never threatened the judge with any legal actions.

Rotker told the panel that it should base its ruling on the three reasons that Judge King had used in denying Diamond's motion for dismissal at the district court level: That the parties had adequately stated their views on a possible mistrial before Kozinski declared it in his recusal letter; that Kozinski didn't act abruptly in making the decision, because the issue had been on the table since the afternoon of June 11, but the final decision was only made on June 13; and that Judge King was correct that, under the Jaromillo decision, Kozinski really had no choice but to recuse himself and declare a mistrial.

On rebuttal, Diamond tore into Rotker's arguments, recounting the events of June 11 and 13 and asserting that there had been no substantive discussions about a mistrial although there should have been, and that Kozinski's decision to recuse himself and declare a mistrial seemed to have been made just hours after the telephone conference concluded, which signaled to Diamond that the decision was indeed "abrupt." He also noted that Kozinski's letter made no mention of his reasons for declaring a mistrial, whether due to the public's perception of his role or any other reason. Diamond also argued that Kozinski had never offered to find a replacement judge so that the trial could proceed.

"Judge Kozinski gave us no opportunity to thoroughly discuss the issues; not in the courtroom and not during the telephone call," Diamond stated flatly. "You can't get more abrupt than that."

"I think we're going to do very well," Diamond assessed after the argument concluded. "Judge Paez seems to be interested in the Bates case, and he feels that there might be a conflict between Bates and Jaramillo, so I hope he'll take to heart the differences I pointed out."

The appeals panel will now consider the arguments presented and render its opinion, which Diamond estimated could take anywhere from a couple of weeks to a couple of months. Check back to this site for an analysis of that opinion once it is rendered.