Metropolitan News-Enterprise


Tuesday, September 23, 2008


Page 3


Court Denies Motion to Dismiss Obscenity Case After Mistrial




A federal district judge yesterday denied a motion to dismiss an obscenity case in which Judge Alex Kozinski declared a mistrial following the disclosure of sexually explicit material on Kozinski’s own website.

Kozinski did not abuse his discretion in concluding that the disclosure created a manifest necessity for a mistrial, U.S. District Judge George H. King of the Central District of California said in a written ruling.

Roger Jon Diamond, who represents Hollywood filmmaker Ira Isaacs on a charge of distributing obscene material—hard-core pornographic films depicting bestiality, among other things—said he would “definitely” appeal the ruling.

Kozinski, who is chief judge of the Ninth Circuit but sits sometimes as a district judge by designation, was presiding over the trial in June when the Los Angeles Times published a story about the contents of a personal Web site maintained by the judge and his family. Kozinski explained at the time that the site was created by his son, a filmmaker, and that he did not realize that it was publicly accessible.

The judge granted prosecutors a delay in the trial so that they could consider filing a recusal motion, then two days later decided to recuse himself and declare a mistrial.

Kozinski reasoned:

“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.”

Diamond, however, argued that there was no need to declare a mistrial, because the case could have been taken over by another judge. Retrial in those circumstances, he argued, violates the Double Jeopardy Clause.

King disagreed. He noted that Kozinski had already asked for a Judicial Council investigation of the matter—the request was referred to a special committee of judges from the Philadelphia-based Third Circuit—and explained that “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.”

The judge went on to say that there was no reasonable alternative to a mistrial.

He explained that the rule allowing a judge to be replaced during trial, Rule 25(a) of the Federal Rules of Criminal Procedure, only applies when a judge withdraws due to “disability.” Recusal is not a disability within the meaning of the rule, King reasoned, because—unlike death or illness—it puts the integrity of the prior proceedings in question.

“To establish the appearance of justice under such circumstances, a new judge would necessarily be compelled to begin the trial anew,” King wrote.

 Prosecutors did not respond to a request for comment.


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