The following article appeared in the National Law Journal regarding a federal appeals judge who, until just recently, maintained a pornographic website:
Experts mixed in reaction to Kozinski's X-rated Web posts
Amanda Bronstad / Staff reporter
June 12, 2008
Legal ethics experts disagree about whether Alex Kozinski, presiding judge of the 9th U.S. Circuit Court of Appeals, should recuse himself from a federal obscenity trial in Los Angeles after acknowledging that he maintained a personal Web site with sexually explicit photos.
Prosecutors at the Department of Justice, which is handling the case in the Central District of California, allege that Ira Isaacs, a film producer in Los Angeles, distributed criminally obscene videos involving extreme fetishes like bestiality and defecation.
On Wednesday, the same day that opening arguments began in the trial, the Los Angeles Times first reported that Kozinski, an ardent defender of free speech and First Amendment rights, admitted posting sexually explicit photos on a Web site with limited public access. The photos included naked women painted like cows and a man cavorting with a sexually aroused farm animal.
Kozinski, in the article, has maintained that the site was for private use and not intended for the public. The site, at https://alex.kozinski.com, required an access name to view. It has since been taken down.
Earlier photos included images of masturbation, public sex, contortionist sex, defecation and urination.
Stephen Gillers, a professor of legal ethics at New York University School of Law, said that while Kozinski has a constitutional right to possess sexually explicit photographs, he should recuse himself since the existence of those images has been made public. "Given the present publicity, the public might reasonably question Kozinski's ability to handle an obscenity prosecution impartially," he said.
But he cautioned that a potential recusal could create a double jeopardy situation.
Ronald Rotunda, professor of legal ethics at George Mason University School of Law, said that if neither prosecutors nor defense counsel seek recusal, Kozinski should remain on the bench for the trial.
"If he recuses himself, and the defendant is convicted, the defendant will argue on appeal that there is double jeopardy. The trial started, the judge left, and the trial started again," he said. "The next question is if he's convicted, is there an error because the judge did not recuse himself? Well, no one asked for his recusal. The defendant can't complain of an error."
David Levine, a law professor at University of California-Hastings, disagreed that a recusal would create double jeopardy. But he said, given that the obscenity trial is before a jury, and no one has filed a recusal motion, Kozinski could remain as judge in the case. The revelations of the Web site could raise judicial ethical concerns that the 9th Circuit's disciplinary committee should consider, however.
"It might be legal to do this, but it probably is not the best thing for a judge to be doing," he said. "A judge ought to be above all suspicion."
All, however, were surprised by the existence of Kozinski's site.
"It's demeaning, infantile, pornographic, offensive, and a list of other words," Rotunda said.
A call to Kozinski's chambers was not returned. In 2001, Kozinski opposed proposals by the Judicial Conference of the United States, the judiciary's administration arm, to monitor the e-mail and Internet use of federal employees, including judges, for the downloading of pornography and other files.
Department of Justice spokeswoman Laura Sweeney declined to comment. Isaacs's attorney, Roger Diamond, a solo practitioner in Santa Monica, Calif., did not return a call for comment.
Professor Rotunda is quoted in this article as saying that a list of other words besides demeaning, infantile, pornographic, and offensive could be used to describe Judge Kozinski's website. How about the words "lacking in sound judgment"? As Professor Levine said, "It might be legal to do this, but it probably is not the best thing for a judge to be doing," he said. "A judge ought to be above all suspicion."
The fact that a federal judge (or any judge for that matter) would maintain a website depicting, among other things, naked women painted like cows is incomprehensible. If nothing else, it demonstrates a complete lack of sound judgment--a quality we have a right to expect from all our judges.
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