Judge Declares Mistrial in La Obscenity Case

By Linda Deutsch
Associated Press
June 13, 2008

LOS ANGELES (AP) - A federal judge under scrutiny for posting sexually explicit material on his own Web site declared a mistrial Friday in an obscenity trial over which he was presiding.

Judge Alex Kozinski said he would ask that the case be assigned to another judge.

Kozinski is chief judge of the 9th U.S. Circuit Court of Appeals but was serving as a trial judge in a federal obscenity prosecution of a man who distributed videos showing bestiality and extreme fetishes.

"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," Kozinski wrote in his order.

The material Kozinski had on his Web site included photos of naked women on all fours painted to look like cows and of a man cavorting with a sexually aroused farm animal, according to the Los Angeles Times, which first reported about the images in a Wednesday story. The extreme pornography at the center of the trial depicted extreme fetishes, including bestiality, violence against women and sexual activity involving feces and urine.

The postings on the judge's Web site came to light earlier this week when opening statements were under way. The trial was suspended Wednesday after jurors had already watched some of the videos.

Kozinski on Thursday asked an ethics panel of the 9th Circuit to investigate his own conduct and pledged to cooperate fully. He also asked the circuit's judicial council to ask Supreme Court Chief Justice John Roberts to assign the inquiry to a panel of judges outside the 9th Circuit's jurisdiction of nine western states.

Kozinski did the right thing in declaring a mistrial and removing himself, said Stephen Gillers, a New York University School of Law professor who is an expert on judicial ethics.

"Those of us who know him know that he could have tried this case fairly, but the public would have thought the court system had lost its marbles if Kozinski had stayed on the case," Gillers said.

In the obscenity case, the U.S. Department of Justice is prosecuting Ira Isaacs, 57, on four counts, including importation or transportation of obscene material for sale. He faces a maximum of 20 years in prison and forfeiture of assets if convicted.

Defense attorney Roger Jon Diamond said he was very upset about the mistrial and was considering his options.

He said it was unclear whether the case could proceed with the same jury and a new judge.

Diamond accused the Department of Justice of "intimidating Judge Kozinski into doing this." Justice Department attorneys are trying the case.

"We all have to be nervous and concerned when the executive branch can do this to anybody, including the sitting federal appeals judge," Diamond said.

Department of Justice spokeswoman Laura Sweeney in Washington, D.C., declined to comment on any aspect of the case.

Diamond said there had been meetings with the prosecutor, Justice Department lawyer Kenneth Whitted, and with Brent D. Ward, the head of the government obscenity task force, since the controversy erupted.

"I made a proposal for a stipulated mistrial, providing the retrial would not take place until early next year and that was flatly rejected by Mr. Whitted and Mr. Ward," Diamond said. "They wanted to disqualify Kozinski and go ahead immediately with the same jury and a new judge Monday morning."

Diamond said he was certain jurors knew of the controversy but he had favored allowing the trial to proceed with Kozinski presiding, rather than simply changing judges.

"If we were to come back to court with a new judge, it would send a message to the jury that Judge Kozinski did something wrong, which is not true. The jury would get the impression that something naughty had occurred, which is not the case."

Cyrus Sanai, a Beverly Hills lawyer who has had a long-running dispute with the 9th Circuit, told The Associated Press he discovered the sexual content while monitoring the judge's Web site in December. Sanai said he downloaded the files then started contacting reporters to bring attention to what he called widespread ethical problems on the 9th Circuit.

9th Circuit Chief Judge Initiates
Internal Review of Explicit Website Posts

By Martha Neil
ABA Journal Law News
June 12, 2008

After news reports that he has posted sexually explicit materials online, Alex Kozinski, the chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals, has initiated a potential investigation of his own conduct.

"I have asked the Judicial Council of the Ninth Circuit to take steps pursuant to Rule 26 of the Rules Governing Judicial Conduct and Disability and to initiate proceedings concerning the article that appeared in yesterday's Los Angeles Times," he wrotes in a two-sentence statement to be posted by the 9th Circuit. "I will cooperate fully in any investigation."

Rule 26 apparently governs the possible transfer of a matter under the judicial conduct code to a different circuit's judicial council for resolution.

As discussed in earlier ABAJournal.com posts, Kozinski has admittedly posted some of the sexually explicit materials seen by a Los Angeles Times reporter on a website that could, at one point, be accessed by any member of the public who knew how how to reach a subdirectory. Kozinski has since arranged to block the site, explaining that he didn't realize it could be seen by the public.

Meanwhile, Kozinski’s son, Yale, told the New York Times yesterday evening that he maintained the site, which also included family photos and some of his father’s articles. “This server is my private Web server,” Yale Kozinski said. “It’s owned by me. The domain is registered to me. The people who have access to put files up there are friends and family.”

The issue has affected an otherwise unrelated ongoing obscenity trial in Los Angeles, over which Kozinski was randomly selected to preside under a program that occasionally puts appellate judges on the bench in federal trials.

At last report, the obscenity trial had been postponed until Monday as the prosecution determines whether to seek Kozinski's recusal. (Defense counsel wants Kozinski to continue to hear the case.)

Cyrus Sanai, an attorney in Beverly Hills, Calif., has told the Associated Press that he alerted reporters at various publications, including the Los Angeles Times, to the sexually explicit images on the website.

9th Circuit's Chief Judge Posted
Sexually Explicit Materials on His Website

Alex Kozinski, Who Is Presiding over an Obscenity Trial in
L.a., Admits He Posted Sexually Explicit Photos and Videos. He Says
He Didn't Think the Public Could See the Site, Which Is Now Blocked

By Scott Glover
Los Angeles Times
June 11, 2008

One of the highest-ranking federal judges in the United States, who is currently presiding over an obscenity trial in Los Angeles, has maintained his own publicly accessible website featuring sexually explicit photos and videos.

Chief Judge Alex Kozinski       Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which 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. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as "funny."

Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

After details about the website were published on latimes.com this morning, the judge offered to entertain motions to recuse himself from the obscenity trial of Hollywood filmmaker Ira Isaacs, who is accused of distributing criminally obscene sexual fetish videos depicting bestiality and defecation.

Prosecutors said they were conferring with supervisors within the Department of Justice about how to proceed. In the meantime, they wanted jurors to be admonished to disregard publicity in the case. Defense attorney Roger Diamond made no objection to Kozinski continuing to hear the case, which began with opening statements this morning.

This afternoon jurors were taken to the appeals court's offices in Pasadena to view three videos at issue in Issacs' trial.

Stephen Gillers, a New York University law professor who specializes in legal ethics, told The Times that Kozinski should recuse himself from the Isaacs case because "the public can reasonably question his objectivity" concerning the issues at hand.

Gillers, who has known Kozinski for years and called him "a treasure of the federal judiciary," said he took the judge at his word that he did not know the site was publicly available. But he said Kozinski was "seriously negligent" in allowing it to be discovered.

"The phrase 'sober as a judge' resonates with the American public," Gillers said. "We don't want them to reveal their private selves publicly. This is going to upset a lot of people."

Gillers said the disclosure would be humiliating for Kozinski and would "harm his reputation in many quarters," but that the controversy should die there.

He added, however, that if the public concludes the website was intended for the sharing of pornographic material, "that's a transgression of another order."

"It would be very hard for him to come back from that," he said.

Kozinski said he would delete some material from his site, including the photo depicting women as cows, which he said was "degrading . . . and just gross." He also said he planned to get rid of a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.

Kozinski said he must have accidentally uploaded those images to his server while intending to upload something else. "I would not keep those files intentionally," he said. The judge pointed out that he never used appeals court computers to maintain the site.

The sexually explicit material on Kozinski's site earlier this week was extensive, including 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 are not presented in a sexual context.

Kozinski, who was named chief judge of the 9th Circuit last year, is considered a judicial conservative on most issues. He was appointed to the federal bench by then-President Ronald Reagan in 1985. He has a national reputation for a brilliant legal mind and has developed a reputation as a champion of the First Amendment right to freedom of speech and expression. Several years ago, for example, after learning that appeals court administrators had placed filters on computers that denied access to pornography and other materials, Kozinski led a successful effort to have the filters removed.

The judge said it was strictly by chance that he wound up presiding over the Issacs trial in U.S. District Court in Los Angeles. Appeals court judges occasionally hear criminal cases when they have free time on their calendars and the Isaacs case was one of two he was given, the judge said.

Kozinski said he didn't think any of the material he posted on his website would qualify as obscene.

"Is it prurient? I don't know what to tell you," he said. "I think it's odd and interesting. It's part of life."

Before the site was taken down, visitors to http://alex.kozinski.com were greeted with the message: "Ain't nothin' here. Y'all best be movin' on, compadre."
Only those who knew to type in the name of a subdirectory could see the content on the site, which also included some of Kozinski's essays and legal writings as well as music files and personal photos.

The judge said he began saving the sexually explicit materials and other items of interest years ago.

"People send me stuff like this all the time," he said.

He keeps the things he finds interesting or funny with the thought that he might later pass them on to friends, he said.

scott.glover@latimes.com

Times staff writers Ben Welsh and Eric Ulken contributed to this report.

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