Metropolitan News-Enterprise


Friday, July 3, 2009


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Panel Admonishes Kozinski Over Website, Calls Judge ‘Careless’

Third Circuit Judicial Council Rejects Further Discipline for ‘Imprudent’ Conduct


From Staff and Wire Service Reports


The Third Circuit Judicial Council yesterday admonished Ninth Circuit Chief Judge Alex Kozinski over sexually explicit material on his personal website.

Kozinski was “careless” and “judicially imprudent” in possessing the material and not safeguarding his files, the panel found. He also failed to fully correct the problem when it was discovered, Third Circuit Chief Judge Anthony J. Scirica wrote.

The panel said there was no need for formal discipline, however, because Kozinski did not intend to make the explicit material publicly available, acknowledged his carelessness, apologized for placing the judiciary in a poor public light, and taken the material offline and promised to permanently delete it once the disciplinary proceedings are complete.

He would have done so earlier, Kozinski said, but was advised by his counsel, Mark Holscher of Kirkland & Ellis, not to do so lest he be accused of destroying evidence.

Obscenity Trial

Kozinski recused himself from an obscenity trial underway when a story appeared in the Los Angeles Times last year about the explicit photos and videos the newspaper found on the website Kozinski was sitting by designation in the U.S. District Court for the Central District of California at the time.

Kozinski asked that a special committee be appointed to investigate the matter, as provided by judicial discipline rules. The Ninth Circuit Judicial Council, which Kozinski chairs, asked Chief Justice John Roberts to transfer the matter to another circuit, and the chief justice obliged by sending the case to the Philadelphia-based panel.

Scirica appointed a special committee comprised of himself, two other circuit judges, and the chief judges of the Eastern District of Pennsylvania and the District of New Jersey.

The committee, which as part of its investigation employed a computer consultant, found—contrary to some suggestions in published reports—that the judge did not make, or intend to make, the materials in question available to the public. It also accepted the chief judge’s explanation that he did not seek out or solicit the materials, but merely saved files sent to him as e-mail attachments by friends.

The committee also noted, however, that Kozinski—whose son had constructed the server, in order that the judge and other family members could access their files while away from home—was aware as early as 2005 that it was possible for uninvited persons to gain access to his computer files, and was aware by later 2007 that such access was in fact taking place yet left most the files “untouched and unprotected.”

Conduct and Disability Act

The Judicial Conduct and Disability Act permits a judicial council to impose private or public censure or reprimand, order that no new cases be assigned to the judge for a limited period of time, request that the judge retire, and/or refer the matter to the Judicial Conference of the United States, which can recommend that the judge be impeached.

But no such action is required in this case, Scirica explained, because the rules allow the council to conclude the case when “appropriate corrective action” has been taken.

“We determine that the Judge’s acknowledgment of responsibility together with other corrective action, his apology, and our admonishment, combined with the public dissemination of this opinion, properly conclude this proceeding.”

Holscher declined to comment on the opinion.

Kozinski recused himself and declared a mistrial in last year’s obscenity trial of adult film producer Ira Isaacs after a Los Angeles Times story described mostly humorous but graphically sexual images on the site.

‘Innocent All Along’

Roger Jon Diamond, who represented Isaacs, said Kozinski did nothing wrong and should not have stepped down from the case. “He was innocent all along and he overreacted to the government’s attempt to get rid of him,” Diamond said.

Diamond brought a motion to dismiss following the mistrial, saying there was no manifest necessity for it and that a new trial would therefore violate the Double Jeopardy Clause. Judge George King, who took over the case, denied the motion, a decision that is now on appeal.

Cyrus Sanai, a Beverly Hills lawyer who discovered the images on Kozinski’s computer in 2007 and contacted reporters to expose what he considers ethical problems on the Ninth Circuit, called the council’s decision “a complete whitewash.”

He accused the judge of illegally distributing copyrighted music on the site and questioned whether the panel had adequately considered that allegation.

“That kind of action when taken by ordinary citizens results in the imposition of huge liabilities,” he said.

Scirica addressed the issue in a footnote, saying the judge did not intentionally distribute music and did not understand that music files on his server where being accessed by file-sharing sites.


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