PASADENA—In a memorandum Order filed on Dec. 22, the U.S. Court of Appeals for the Ninth Circuit has denied adult video producer/director Ira Isaacs' bid to avoid a retrial on the obscenity charges for which he was previously tried before Ninth Circuit Chief Judge Alex Kozinski.
At issue was Judge Kozinski's June 13, 2009 Order recusing himself from the trial, and declaring that there existed a "manifest necessity" for a mistrial in the case. Kozinski issued the order largely on the basis of articles published in the Los Angeles Times earlier that week which claimed that Kozinski was the owner of a website which contained material allegedly "the same or similar to" the material which formed the basis for the charges against Isaacs.
As Isaacs' attorney Roger Jon Diamond argued to a three-judge appeals panel on Dec. 10, the entire Kozinski recusal affair was fraught with error, in that Kozinski failed to hold a hearing on his recusal, as required by law, and Diamond further argued that even if the appeals panel found that Judge Kozinski's recusal met the legal standard, there still was no need for a mistrial, since another judge could easily have been appointed to replace Kozinski, and the trial could have continued with the same jury.
The Fifth Amendment to the U.S. Constitution prohibits a person from being tried twice for the same offense—termed "double jeopardy"—and the Supreme Court has ruled that jeopardy first attaches to a criminal proceeding once a jury has been sworn in, as it was in the Isaacs case.
However, although Diamond had argued that there really was no basis for Kozinski to have recused himself in the first place—later analysis of Kozinski's website showed that the sexually oriented material therein was mild by any standard as compared to the bestiality and coprophagia videos with which Isaacs had been charged—the appeals panel dismissed that distinction by claiming that the mere fact that the subject had made newspaper headlines was enough to taint Kozinski's involvement in the trial.
"Judge King [who "inherited" the case from Kozinski] did not err in ruling that Judge Kozinski properly recused himself from Isaacs's case under 28 U.S.C. §455(a)," the panel wrote. "In analyzing §455(a) recusals, we ask 'whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.' We find that a well-informed observer may reasonably have questioned Judge Kozinski’s ability to act as an impartial judge in Isaacs’s trial. Thus, we affirm Judge King's determination that the recusal was proper under §455(a)." [Citations removed here and below]
However, as AVN readers know, a "well-informed observer" would likely have concluded that Kozinski's website material was a far cry from the material which formed the basis of Isaacs' trial.
The memorandum Order also failed to deal with the question of whether Kozinski had followed proper court procedure both in recusing himself and in declaring the mistrial, since no formal hearing was held on the issues, and there is no transcription of the telephone conference held on June 12 between Diamond, Justice Department prosecutor Kenneth Whitted and Judge Kozinski's law clerk, which allegedly led to the recusal order.
Instead, the Order takes the recusal as a "given" and concentrates on the basis for ordering a mistrial, noting that the case on point is U.S. v. Jaramillo, where a federal judge, Harry Claiborne, recused himself from Jaramillo's criminal trial after himself having been indicted for bribery, fraud and tax evasion.
"Isaacs's attempt to distinguish Jaramillo is unsuccessful because the crux of the case was that 'the designation of another judge [in Jaramillo] would not remove the appearance of partiality concerning all prior rulings and all actions of the indicted judicial officer,'" the appeals court held. "In this case, the designation of another judge half way through the proceedings would not have removed the appearance of partiality concerning Judge Kozinski's previous actions in the case."
However, as Diamond pointed out, Judge Kozinski's "previous actions" had been minimal. Although he had early on approved Isaacs to testify during the trial as an expert on fringe sexual material, once the trial itself began, Kozinski's actions had been merely to oversee both sides' opening statements, to hear the testimony of the FBI agent who had mail-ordered the three movies at issue, and then to begin showing the movies themselves—in other words, almost nothing of substance that could call his impartiality into question.
The appeals panel also dismissed concerns that the Los Angeles Times articles which prompted the recusal/mistrial in the first place had contained false assumptions about the character of the material on Kozinski's website.
"Judge King [who presided over the initial hearing on the motion to dismiss] did not err when he took judicial notice of the Times articles because the articles were not hearsay," the appeals panel assessed. "Hearsay is an out of court statement offered for the truth of the matter asserted. The out of court statements contained in the Times articles were not offered for the truth of the matter asserted. Judge King's determination of whether Judge Kozinski's recusal was proper under §455(a) required Judge King to assess whether a reasonable person with knowledge of all of the facts would question Judge Kozinski’s impartiality. Because Judge King's judicial notice accepted only the existence of the Times articles, the articles were not hearsay."
In other words, the appeals panel was unconcerned that Judge King never bothered to question the accuracy of the Times articles; as far as the panel was concerned, the articles' mere existence was enough to cause "a reasonable person with knowledge of all of the facts" to conclude that Kozinski could not continue to preside over the trial impartially, even though, in actuality, the material on Kozinski's website was of a caliber that could be found in sexually oriented mainstream adult publications like Playboy or Penthouse.
At press time, it was unclear whether Diamond would appeal the panel's decision to an en banc panel of the Ninth Circuit (which Chief Judge Kozinski would likely recuse himself from hearing) or to the U.S. Supreme Court. However, it's a decision which Diamond will have to make by Jan. 5.