Will Ira Isaacs Be Justice Stevens' Last Case?

LOS ANGELES—For a guy whom some have described as "not really a part of the adult industry," Ira Isaacs may find himself responsible for a slew of positive free speech legal decisions.

After all, even before his trial started, Isaacs got himself declared an "expert witness" in his own obscenity case, and later announced that part of his defense would be that he is a "shock artist," and that because his works (and others like it, such as the internet video "Two Girls, One Cup" and the online commentary that engendered) had gained acceptance as "shock art," they could not be obscene under the Miller standard.

But now Isaacs' attorney, Roger Jon Diamond, has come up with a new wrinkle. As AVN readers know, Isaacs' obscenity trial has been on hold for nearly two years owing the recusal of the presiding judge, Alex Kozinski (who's also Chief Judge of the Ninth Circuit Court of Appeals), and his declaration that there was a "manifest necessity" for a mistrial after the L.A. Times exposed the judge's mostly softcore porn website.

Diamond has already petitioned the U.S. Supreme Court to decide whether Kozinski's mistrial declaration was improper, and that therefore his client is now facing a double jeopardy situation—but in a letter addressed to both the Clerk of the U.S. Supreme Court and to Solicitor General Elena Kagan and her chief deputy, Diamond is urging the high court to consider his petition while retiring Justice John Paul Stevens is still on the bench, or in the alternative, for Kagan not to even look at his petition so that she'll be able to take part in the proceedings as a high court justice if it turns out that Stevens can't or won't.

What prompted Diamond's letter was the Supreme Court's May 3 ruling in Renico v. Lett, another case involving double jeopardy, though in that case, the claim occurred as a result of a Michigan trial judge dismissing a jury who failed to reach a verdict after only four hours of deliberation, with the judge then declaring a mistrial.

"The case deals with a state criminal case involving double jeopardy," Diamond wrote in his May 13 letter. "Soon to be retired Justice Stevens wrote a very good dissenting opinion in which Justices Sotomayor and Breyer joined. Naturally the position of Justice Stevens favors my position and obviously I would very much benefit if Justice Stevens were to participate in the decision to grant or deny certiorari. I do not know whether he is leaving the court at the end of June or will remain with the court until his successor is confirmed by the United States Senate. Since my client, Isaacs, needs at least four votes [for the Supreme Court to accept cert], he is better off with nine justices voting than eight justices voting. Even with respect to the merits of the case the losing side in the circuit court generally cannot afford to lose even a single justice in some cases."

Indeed, Justice Stevens had a firm vision of what would constitute the proper legal basis for granting a mistrial.

"We have come over the years to recognize that jury coercion poses a serious threat to jurors and defendants alike, and that the accused's interest in a single proceeding must sometimes yield 'to the public's interest in fair trials designed to end in just judgments,' and we have therefore carved out exceptions to the common-law rule [governing mistrials]," Justice Stevens wrote in his dissent from the majority decision. "But the exceptions are narrow. For a mistrial to be granted at the prosecutor's request, 'the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one.' A judge who acts sua sponte in declaring a mistrial must similarly make sure, and must enable a reviewing court to confirm, that there is a 'manifest necessity' to deprive the defendant of his valued right. In this case, the trial judge did not meet that burden. The record suggests that she discharged the jury without considering any less extreme courses of action, and the record makes quite clear that she did not fully appreciate the scope or significance of the ancient right at stake." [Citations removed here and below]

Diamond has long argued that there was no need for Kozinski to declare a mistrial simply because he had been embarrassed by the L.A. Times' revelation. At least one course was open to him even if he didn't want to proceed with the trial himself: He could have had another judge appointed to replace him, since the trial had barely started and no crucial testimony had yet been taken.

Compare that with Justice Stevens' recapitulation of the proceedings in the Renico case, where Stevens indicates he would not have allowed a mistrial:

"It is probably fair to say that this trial was not especially complex, but neither was it a trivial affair," he wrote. "Lett was charged with the most serious of crimes, first-degree murder, as well as possession of a firearm during the commission of a felony. He faced a potential sentence of life imprisonment if convicted. Seventeen witnesses provided testimony over the course of 10 calendar days. The jury's first period of deliberation on Thursday afternoon lasted less than 40 minutes. 'The jury likely spent' that brief session 'doing little more than electing a fore-person.' The jury deliberated a few more hours on Friday morning prior to discharge. During that time, it sent the trial court seven notes. Most were inconsequential, routine queries."

Stevens goes on to describe several missteps the trial judge committed during discussion of the jury's question "What if we can't agree?" He noted that that trial judge's actions were far more egregious than Kozinski's simply being the alleged webmaster of a soft-porn site.

"Stevens wrote a very good dissenting opinion, saying double jeopardy was clearly violated, and therefore the Michigan Supreme Court was unreasonable in reinstating the conviction after the Michigan Court of Appeals had reversed," Diamond summarized. "So the reason all this was triggered was because Stevens is a great vote on double jeopardy, and Sotomayor and Breyer joined in his opinion. So we have three good votes on the Supreme Court on double jeopardy; we just need to pick up one more vote. The majority, the six in the majority, didn't really focus on the double jeopardy so much as they said, 'Look, whether you do or do not like the Michigan Supreme Court's decision, it wasn't so totally off-base that it should be undermined by the federal courts.'"

Although Stevens has said that he would resign as soon as the last opinion of the 2009-2010 court term has been announced, that hasn't happened yet, and Diamond hopes to convince the high court clerk to bring this case to Stevens' attention so that his vote may decide whether the Supreme Court will accept Isaacs' certiorari petition for next term.

But that's not all, because even if Stevens does manage to get Isaacs' petition accepted, he won't be there when the court reconvenes on the first Monday in October; instead, it's highly likely that current Solicitor General Elena Kagan will be—and therein lies another dilemma for Diamond, because the Solicitor General may—but is not required to—reply to Isaacs' petition for certiorari, and to do so, Diamond argues, might force her to recuse herself from any proceedings involving Isaacs once she's confirmed as a Supreme Court justice.

"I am respectfully asking the Solicitor General not to do anything that would result in her being recused in October," Diamond wrote in his letter. "I do not know whether she can avoid participating in this case as the Solicitor General. If there is anything she can do to avoid having to recuse herself in October if she takes any action with respect to this case as the Solicitor General I request that she take such action (e.g., delegating [the] task of responding to [the] Petition to another attorney). To the extent that I am able to do so on behalf of my client, Ira Isaacs, I hereby declare that we prefer to have the Solicitor General Elena Kagan not participate in this case so as to avoid the necessity of her having to recuse herself in October."

"On the other hand, if that is not possible or if she insists upon participating in the case now," he continued, "I want to let the Government know that we waive any right to seek her recusal and we positively and emphatically request that she remain on the case in October as a Justice of the Supreme Court even if she does participate as the Solicitor General with respect to the Certiorari Petition. The point of this letter is to waive any recusal right we might otherwise have and to alert the Solicitor General that she might have to excuse herself from participating in the response to the Certiorari Petition in order to be able to consider this case in the fall."

It's likely that this is the first time in history that a defense attorney has asked a Solicitor General—in a sense, a government prosecutor—not to participate in a Supreme Court decision in a case that she's briefed (or her office has briefed) in a prosecutorial capacity ... but that's just the latest twist in this already history-making case.

"I think that Kagan will be confirmed, and it's my understanding that she will disqualify herself in all criminal cases that pass through her office when she was Solicitor General," Isaacs told AVN in an exclusive interview. "That's my problem, because I think she'd be a good vote for me; she's replacing Stevens, but we don't want her to disqualify herself, because the burden's on the person seeking review to get four votes for review and five votes on the merits to win the case. So when you lose justices on the Supreme Court, you don't get replacement judges; you don't get justices sitting by designation like you do in lower courts. So I'm concerned if we're down to eight, we'll need four out of eight rather than four out of nine, and it's easier to get four of nine than four of eight and especially, we don't want to lose Kagan, because though she's now the Solicitor General, something tells me that she might be a good vote for us, but we don't know for sure. Unfortunately, we'll be losing Stevens, but we don't lose anything by having her on the court and not recusing herself because we need four votes."

If the Solicitor General (or her subordinate) decides to reply to Isaacs' petition for cert, she/he must do so by June 10, so the clock is ticking with respect to Diamond's letter request. Check back to this site for any official response to this unusual legal situation.