LOS ANGELES - After a hearing before U.S. District Judge George H. King on Monday afternoon, shock artist Ira Isaacs' attorney Roger Jon Diamond was jubilant.
"There's an evidentiary issue I raised that might have caused him to change from his tentative decision which I thought might have gone against us, though he never said that," Diamond told AVN. "He made a couple of statements that were good for our position. But he hasn't made a ruling yet. The judge indicated, after listening to extensive argument, that he was going to recess and come back out and make his decision on the record from the bench, so he recessed at about 5:30, came back about 15 minutes later and apologized, saying he was not yet ready to make his decision; he would have to notify us by a written decision."
At issue was the fact that the original trial judge in Isaacs' obscenity case, Alex Kozinski, who also serves as the chief judge of the Ninth Circuit Court of Appeals, had "recused" himself from - essentially, quit - the case after the Los Angeles Times published an article revealing that Kozinski owned a mildly sex-related website. However, in Kozinski's Order of Recusal, he wrote also of the "manifest necessity" to declare a mistrial in the case, which the chief judge of the Central District of California took as an Order for Mistrial, and so informed both attorneys and the jurors who'd already heard evidence in the case.
Trouble is, under the law, a mistrial can only be declared for certain reasons, and only after a hearing has been held in which all parties are present and can argue for or against the action. That didn't happen in the Isaacs case.
So it was that on June 23, a hearing was held before Judge King, to whom the case had been assigned for the new trial, and at which Diamond moved for a directed acquittal for his client on grounds of double jeopardy. Diamond argued that the mistrial had been improperly declared, and that because the jury had heard testimony, "jeopardy" had "attached," and Isaacs could not then be tried a second time for the same offense. Opposing Diamond at that time was Ken Whitted, of the U.S. Department of Justice (DOJ) Obscenity Prosecution Task Force; the attorney who also prosecuted Five Star Video in Phoenix, and is involved in the Movies By Mail case in Utah.
Judge King asked Diamond to brief his double jeopardy motion, and asked the government to respond to it, setting a hearing on the motion for Sept. 8 at 3:30, at which time Diamond found himself pitted against a new player, Task Force attorney Michael A. Rotker, who authored the government's reply to Diamond's acquittal brief.
"There are two major issues," Diamond explained. "One, whether he should have recused himself, and two, whether if he did recuse himself properly, whether that should have automatically resulted in the mistrial and the declaration for the mistrial and a retrial. On the issue of the mistrial, the judge, from his comments, seemed to disagree with my position that assuming arguendo the recusal was proper, there were things the court could have done short of declaring a mistrial, such as bring in a new judge, and one of their arguments was that the statute doesn't cover this situation; it only covers recusal for death or disability; that recusal under these circumstances is not part of the statutory scheme for having a judge come in."
The government, however, in opposing Diamond's motion, relied on a Ninth Circuit case from 1983 involving U.S. District Judge Harry Claiborne, who, in the middle of presiding over a criminal trial in Las Vegas, was himself indicted for bribery, fraud, and tax evasion (for which he was eventually impeached and later committed suicide), and who therefore declared a mistrial in the criminal action.
"In that case, the issue was tangentially raised as to whether a mistrial was necessary; the judge could have just recused himself," Diamond reflected. "The Ninth Circuit ruled in that case on the double jeopardy issue that not only did Claiborne properly recuse himself when he got indicted, but that the public's confidence in the integrity of the judicial system would have been undermined if a new judge simply came in and took over, because rulings he had already made were in effect tainted by this indictment and therefore they needed a fresh new judge to start over with a new trial. So in that case, the double jeopardy clause argument was rejected by the Ninth Circuit, and that is the government's strongest argument here."
Of course, Kozinski hasn't been indicted for anything, and as far as anyone can tell, nothing on Kozinski's website would give rise to any criminal charges.
"Right; that's the difference!" Diamond exclaimed. "Then the judge's response to that was, factually, is it only important that the public's perception is such that recusal is required? Because I tried to argue, what if the public is wrong? What if they are clamoring for something they're not entitled to? So we got into the issue of recusal, and basically, the judge said, and the government agrees, that if Kozinski improperly recused himself, then that's the end of the line; there would not have been a need for a mistrial. But if he properly recused himself, the judge is of the tentative view that there was manifest necessity to declare a mistrial with a proper recusal, and without a hearing of whether he should have recused himself."
The question of whether Kozinski did properly recuse himself is a sticky one, and very much dependent on public attitudes about all things sexual. We've had a president who was impeached over a blowjob given by his intern, and several senators who've been discovered to have had extramarital affairs, but those all involved sexual conduct. There have been few if any cases where a federal judge has been discovered to have had a sexually-oriented website - and in this case, a very tame one - so there seems to be no basis to ascertain what public reaction would be to the actual materials on the site, as opposed to its reaction to reading inflammatory articles in the local press characterizing the materials on the site.
"The question was, what did Kozinski have on his website, because that's crucial," Diamond detailed. "And the government acknowledged that they don't know what was on his website; all they know is what was in the L.A. Times article. I told the judge that we don't agree with the facts in the L.A. Times article, and this is what I think changed Judge King's mind. I said, 'We don't agree with the facts in the article. How do we know they're true? They're simply facts asserted in a newspaper article; they may be true, they may be false.' King then seized upon that and said to the government lawyer, 'What if the truth is that he [Kozinski] didn't even have a computer, that the entire article is made up?' This caught the government, I think, off guard, because that is my argument, that we don't agree with the facts alleged in the article."
"The article was never actually admitted into evidence," Diamond continued, "and here's the great irony: The case I'm relying upon on the issue of the evidentiary record to support mistrial? A decision by Kozinski! It's a case called U.S. v. Bonas. I argued that there's no evidence in the record as to what Kozinski had or didn't have on his website; it's just allegations. And I also argued that the article in the Times was misleading in that it created the false impression that the material was pretty bad, or was the same or similar to what was on trial. They [prosecutors] then started looking through the articles, saying, 'Well, it didn't exactly say that.' I said the impression that the public got was that it was basically the same. My argument was if in fact the material was not in any way similar to what's on trial with Isaacs, then there was no reason to publish the article; it had no news value whatsoever. Arguably, the only news value in the article would be if the judge had the same material; so therefore I said the public was arguably misled by the Times article, and that gets back to my original argument which was, what happens if the public wrongfully believes something? Is that enough for the judge to disqualify himself, if the public has an erroneous view?"
There were other issues argued on Monday, including whether Diamond had actually agreed to a mistrial during a conference call between himself, Whitted and Judge Kozinski's law clerk that had occurred shortly after Kozinski recessed the trial in order to consider his course of action in light of the L.A. Times article. During that conversation, the government was still considering whether it would file a motion to recuse Judge Kozinski, and when asked whether that motion could be filed under seal, so that its contents would not be made public, Whitted reportedly refused to allow the motion to be sealed. Diamond argued that that stance put additional pressure on Kozinski to consider recusing himself.
"They're the ones who were threatening him and they're the ones who were intimidating the judge," Diamond charged of the government. "When you're dealing with sexual matters like that, people do get intimidated; even judges."
In short, it's an issue that, while appearing fairly simple, is in fact complicated, in no small measure because of the fact that it involves both sexual material and a federal judge. At press time, Judge King had not yet issued his ruling, although Diamond has stated that if he loses, he will appeal ... to the Ninth Circuit Court of Appeals, where the chief judge is ... well, readers already know.