LOS ANGELES—Roger Jon Diamond, attorney for adult director/producer Ira Isaacs, has filed a petition for certiorari with the United States Supreme Court, seeking to halt proceedings against his client. The basis for the petition is that the former judge in the case, Alex Kozinski, whose primary job is as the Chief Judge for the Ninth Circuit Court of Appeals, improperly recused himself and improperly declared a mistrial in the Isaacs obscenity case after the Los Angeles Times published an embarrassing article which claimed that Kozinski's website contained "images of masturbation, public sex and contortionist sex... as well as themes of defecation and urination."
"Petitioner unsuccessfully argued below that more is needed to justify recusal during a criminal trial than prior to jeopardy attaching," Diamond argued in his petition. "If a defendant in a criminal case has done nothing to contribute to the possible necessity for recusal and if he specifically objects to recusal and a possible mistrial, the trial court judge should be more reluctant to recuse himself if the effect of the recusal is a retrial."
In fact, Diamond was given no on-the-record opportunity to object to Kozinski's recusal nor is declaration of a mistrial, though there was one crucial but non-recorded telephone conference between Diamond, Kozinski's courtroom clerk Cynthia Salyer and prosecutor Ken Whitted which apparently led directly to Kozinski's recusal order. Diamond asserts in the petition that at no time did he waive his right to contest the mistrial declaration, and he is on the record with his objection to Kozinski's recusal. However, in the petition, he raises the issue that the Supreme Court should set tighter standards regarding recusals and declarations of mistrial.
"After all, there is a continuum with respect to partiality and impartiality," Diamond argues in the petition. "Obviously there are cases where recusal would be warranted such as the district judge discovering in the middle of the trial that the defendant is his long missing brother. The judge might discover that he overlooked the fact that he owns a substantial amount of stock in the corporate defendant standing trial before him. There are extremes in the other direction which would not require recusal (the defendant has season tickets next to the judge’s seats at the local ball park)."
Undoubtedly, one issue the high court would have to decide if it accepts certiorari would be the nature of the material on Kozinski's website. AVN has seen much of the material, and blogger Patterico, a local Los Angeles attorney, has seen even more and has disputed the characterizations of it by the L.A. Times. In Patterico's view, the "themes of defecation and urination" were presented entirely in a humorous context and would not have been considered obscene by any unbiased court. Moreover, while other material was indeed sexually explicit, none of it would have given rise to criminal charges either—as indeed the Judicial Council of the 3rd Circuit Court of Appeals found after an investigation which Kozinski himself encouraged.
"In the instant case it turned out that the trial judge (Chief Judge Alex Kozinski) had some raunchy but not legally obscene photos on his own website," Diamond noted. "No one accused Judge Kozinski of being partial to the defendant. The Third Circuit’s Judicial Council simply determined that Judge Kozinski had been judicially imprudent, a finding to which Petitioner vigorously objects. The question is whether a judge’s private conduct involving his own taste of text and pictures disqualifies him from handling a criminal obscenity case, where the materials were admittedly of a much different nature than what Judge Kozinski might have had on his own website."
Diamond's petition raises several important questions, the most important of which (aside from whether the mistrial declaration was proper) is whether, instead of recusing himself from the case, Kozinski could simply have stepped aside and allowed another judge—possibly Judge George H. King, who had presided over some very early hearings in the matter, and who is the judge now assigned to the case—to step in and complete the trial, which had already empaneled a jury, which in turn had seen opening arguments from both sides, and had watched two of the three movies at issue in the case.
"The question before the District Court, the Ninth Circuit, and this Court is whether or not recusal was mandated by Section 455(a)," Diamond stated, referring to the Rule of Judicial Procedure (Title 28 of the U.S. Code) which controls when a judge should recuse himself. "Petitioner submits it was not. Judicial impropriety is not the same as judicial partiality. This Court has never decided a recusal case in the context of a criminal jury trial where the recusal, over the objection of the defendant standing trial, results in a mistrial and a potential retrial."
Diamond cites several Supreme Court cases dealing with the recusal of a judge, notably Liteky v. United States, where the judge in that criminal case refused to recuse himself on grounds of partiality.
"[A]lthough four justices of this Court concurred in the judgment but not in the opinion of Justice Scalia, even the concurring judges agreed that Section 455(a) required a 'high threshold'," Diamond cited, quoting the characterization of Justice Anthony Kennedy.
"As stated, the government below argued there was no sliding scale of recusal and that if recusal is warranted in one case it is warranted in another case, no matter at what stage of the proceedings (pretrial versus during trial)," Diamond later argued. "Petitioner disagrees and submits that in some cases, which can go one way or the other, if the effect of the recusal is to impinge upon the right be free of double jeopardy, then the District Court should give the defendant more slack if the defendant is objecting to the recusal by the Court. Indeed, in such a circumstance it would help for the prosecution to join in the defendant’s request that the district judge not recuse himself."
In this case, however, it was the prosecution's threat, during the June 12, 2008 telephone conference, to make its Motion for Recusal public (rather than being filed under seal) that apparently spurred Kozinski to file his Order of Recusal later that afternoon.
"Chief Judge Kozinski should have followed the lead of Supreme Court Justice Scalia, who denied a motion to recuse him in Cheney v. U.S," Diamond advised, referring to the lawsuit seeking to require then-Vice President Cheney to reveal who had attended an energy summit he had convened in the spring of 2001. "Justice Scalia said recusal was not warranted despite his reception of '. . . a good deal of embarrassing criticism and adverse publicity . . . .' Scalia refused to succumb to negative stories in the Los Angeles Times. Justice Scalia rejected the assertion that his impartiality could be reasonably questioned because the largest newspapers in the United States questioned his impartiality."
Diamond also noted that there is currently a split between the Fourth and the Ninth Federal Circuits regarding whether a judge who replaces another judge in the middle of a criminal trial can continue the trial from the point that the original judge left off, with the Fourth Circuit, in the case of United States v. Sartori, ruling that it had been improper for the original trial judge to declare a mistrial rather than seeking a replacement judge to continue the trial. On the other hand, in the Ninth Circuit case, United States v. Jaramillo, the presiding judge Harry Claiborne had himself been indicted on criminal charges, which circumstances the court found properly allowed that judge to recuse himself and declare a mistrial.
"With respect to the alternative of having another judge replace Judge Claiborne, the Ninth Circuit felt that the indictment of Judge Claiborne tainted all prior rulings and actions of Judge Claiborne from the inception of the trial," Diamond argues in the petition. "In other words, putting a new replacement judge in the middle of the trial would not have solved the particular and unique problem of having had an indicted judge preside over the case. Under the theory and reasoning of the Ninth Circuit in Jaramillo case, Judge Claiborne would not have been able to sit on any future trials so long as he was under indictment. Thus, this case is unique because nobody has suggested that Judge Kozinski should not function as a judge based upon his web site."
Diamond then goes on to observe that the government's contention that Kozinski should not preside over Isaacs' obscenity trial (or, potentially, over any other obscenity trial) because he possessed sexually explicit materials, then future obscenity defendants would find only themselves on trial before judges who had never had erotic materials in their possession, and, "No defendant in an obscenity case would ever want a judge who deliberately steers clear of erotic material to preside over an obscenity case."
"Such a judge is obviously hostile to any type of erotic material," Diamond continued. "Such a judge would be partial to the prosecution. If the Government is right[,] trial judges in obscenity cases should have to disclose [what] their personal preferences are with respect to erotic material. Any competent defense attorney about to start an obscenity case, based upon what has happened in this case, would want to know about the judge’s private possession of erotic material. The defense would want to know if the judge subscribes to Playboy magazine or goes to x-rated theaters or deliberately avoids them. The defense would want to know the judge’s reading habits. Indeed, the prosecutor would also want to know. In this particular case if there should be a retrial the Department of Justice will want to know the reading habits of the district judge who will decide this case."
Citing several other cases involving recusal and mistrial, including one as early as 1824, Diamond concludes, "This Court has never decided the issue presented by this case involving the double jeopardy clause. Specifically, this Court has never upheld the granting of a mistrial and the conducting of a second trial over a defendant’s objection when the defendant or his attorney did not contribute in any way to the need for the mistrial and when the trial could have continued (e.g., no hung jury and no procedural defects in indictment)."
The Justice Department will have a chance to respond to Diamond's petition, and the Supreme Court will then consider the petition for a hearing during its 2010-2011 term. Meanwhile, Ira Isaacs finds himself in the unenviable position of possibly being the defendant whose case may end by requiring all federal judges to reveal their tastes in erotic material—an outcome that may gain him the enmity of the entire federal judiciary.
Only time will tell.