Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, is in a controversy over his publicly accessible website, which featured sexually explicit photos and videos. He insists that some of these photos were posted privately as a joke. Kozinski is a long-time friend, who has appeared in my classes in past years. While I never visited the website in question or received such material, I can attest to the fact that Kozinski has a peculiar sense of humor. He is a brilliant jurist and a leading libertarian voice on the Court. Nevertheless, the disclosure is complicating Kozinski’s sitting in a leading pornography case involving Ira Isaacs.
The objectionable material include 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. Another is a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair. Yet, other pictures reportedly involve a striptease featuring a transsexual and a series of photos of women’s crotches as seen through snug fitting clothing or underwear.
Kozinski, 57, said that he did not realize that the material could be accessed by the public. The disclosure has led to calls for him to recuse himself from the case of Ira Isaacs, click here.
The recusal question is an interesting one. It is not clear that any of this material was intended for purposes of arousal. Yet, even if it were, it raises the question of whether interest in such pictures requires recusal. There are many justices who have private lives that include extremely religious activities or conservative cultural values. However, recusal would not be demanded for such private views. Judges are expected to transcend their personal values in reaching legal conclusions and most are capable of doing that. In that sense, it is an issue that could be analogous to the controversy over Judge Robert Somma, click here.
Stephen Gillers, a New York University law professor who specializes in legal ethics, says that he must recuse himself because “the public can reasonably question his objectivity” concerning the issues at hand. Yet, does that mean that anyone who has watched or downloaded pornography is not objective? Doesn’t that create a bias in the other direction? It would suggest that private viewing of pornography is somehow discrediting — a position that would likely limit judges to a more conservative group.
I have not seen the pictures or video but it does appear that recusal is necessary in this case. There are reportedly pictures of themes of defecation and urination, which fall into the scope of the trial. While I believe Kozinski that the posting on a public site was an accident, such pictures would likely come to close to some of the evidence in the case. Moreover, given the public controversy, it may be difficult to separate the case from the controversy.
Such a recusal would be a blow for Isaacs, since Kozinski’s libertarian views would make him ideal for the case from the perspective of the defense.
One of the issue getting a lot of discussion is the fact that Kozinski sought to have filters removed that had been put on computers to deny access to pornography and other materials.
I believe that Kozinski has done the right thing in coming out and speaking frankly about this problem. It would be a shame to allow this controversy to darken an otherwise stellar judicial career. However, this controversy appears to be growing (another good reason to recuse oneself).
For the full story, click here.
I would be more worried about bias by a judge who had never viewed pornography.
Okay, that’s a gross oversimplification. We aren’t talking about Playboys, or even Hustlers, at his home.
But I not comfortable when people try to claim that there’s only a single line here. There’s two. E.g., I don’t care if a judge has never done illegal drugs. Neither have I. But if a judge says that he’s never used -any- “drugs” (including what everyone else calls OTC and prescription medications) then I’m worried if he can be objective in cases where unintended side-effects are central. Ditto porn — somebody who’s never seen a bare breast in any movie (even theatrical releases) or publication (even National Geographic magazines) would worry me if I’m facing obscenity charges.
As a semi-aside, it’s hard to think of anything dumber than the “Ted Bundy (or whoever) viewed porn before he murdered people, so we should ban porn” claim. Even if true, which is far from certain since the speakers may have many different motivations besides a desire for the truth to get out, it’s irrelevant. The issue isn’t how many people did X before they did Y, it’s how many people did X and never did Y afterwards. (E.g., perhaps the availability of porn reduces sexual crime since it provides a relief valve, so to speak.)
Take the original argument at face value and its trivial to reduce it to absurd claims.
Every single murderer breathed within 5 minutes of committing their crime! Ban breathing!
Every single murderer ate within a a few days of committing their crime! Ban eating!
Every single murderer went to the bathroom within a few days of committing their crime! Ban public toilets!
At the same time, I’m sure at least one rapist helped an elderly woman across the street shortly before committing his crime.
The naughty judge posted sexual images on a website that he thought was hidden from the public, the details of which were made public in the Los Angeles Times. Turns out he posted a collection of wildly scandalous pictures of nude women and men in awful positions.
One of the images is of a naked woman on all fours painted to look like a cow. There is a video of a mostly naked man doing you know what with farm animals. Others contain scenes of defecation and other debauchery.
Kozniski sheepishly conceded that some of his collection was inappropriate, but he called other material “funny.” Rather curiously he claimed that “people send me stuff like this all the time.”
The worst part about this story is that Alex Kozinski unabashedly hides his liberal credentials.
Nobody would bat at eye if this story happened to one of the outspoken liberal members of the 9th Circuit in San Francisco, but we are talking about Alex Kozinski who’s name appeared from time to time on lists of potential nominees for the U.S. Supreme Court!
We believe the judge’s awareness of the popularity of these “viral videos” makes him even more qualified to maintain impartiality over a trail involving the interpretation of community standards.
Fort those who haven’t seen them, we’ve compiled a list of the “funny, odd, and interesting” files discovered on the Kozinski family computer:
USLaw.com/pop
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