PHILADELPHIA, Pa. — The Judicial Council of the 3rd Circuit Court of Appeals has finally released its assessment of the allegations against 9th Circuit Chief Judge Alex Kozinski, stemming from the revelation last June of a website on which Kozinski had posted humorous and strange sexual material, and have essentially found Kozinski "not guilty" even while acknowledging that his actions "resulted in embarrassment to the institution of the federal judiciary."
The controversy began on June 11, 2008, when the Los Angeles Times published a story accusing Kozinski — who, although the chief judge of the 9th Circuit, was presiding (as is his right to do) over the obscenity trial of producer/director/retailer Ira Isaacs — of owning a website containing "images of masturbation, public sex and contortionist sex" as well as material with "themes of defecation and urination." In fact, there was little hardcore on the site, and legal blogger Patterico, a Los Angeles prosecutor, published an analysis of the material which debunked the harsh terms used by the Times in its descriptions, and concluded that just about everything on the site was there for its humorous rather than sexual content.
But that analysis was not published until several days later, and in response to the public hysteria over the revelation of the site, Kozinski suspended the Isaacs trial after three days of testimony, and two days later filed a motion to recuse himself from the proceedings, also citing the "manifest necessity" for a mistrial in the case.
Kozinski also requested that a judicial council be empaneled to investigate the various allegations of wrongdoing on his part, and U.S. Chief Justice John Roberts assigned that duty to the 3rd Circuit, whose judicial council finally delivered its report in late April, but whose contents were not revealed at that time.
However, as part of the judicial council's "memorandum opinion," Kozinski apologized to his peers and to the public, part of which the panel quoted in the opinion.
"I have caused embarrassment to the federal judiciary," Kozinski told the five-member council. "I put myself in a position where my private conduct became the subject of public controversy. While this was painful for me personally, my greatest regret is that I was identified as a federal judge, indeed, as a Chief Judge of the nation’s largest federal circuit. And thus whatever shame was cast on me personally, it reflected on my colleagues and our system of justice as well. ... My unfortunate carelessness with certain files on my computer has embarrassed the federal courts. And for this, I am deeply sorry."
In fact, the panel determined that the material which formed the basis for the Times report was never meant to be made available to the public, but rather was contained entirely on a private server to which Kozinski believed only he and his family had access.
The server, which was maintained by the judge's son, a computer hobbyist, was found to contain, in a file marked "stuff," a total of 13,000 files, including about 7,000 family photos, with the sexual material forming only a small part of the total. Kozinski at one point told the judicial council that he considered the server to be a place where he could store materials, "like old things that I've sort of thrown into a room without looking at them ... I don't know why I kept them," and noted that he was not aware that the files could be accessed by the public.
"alex.kozinski.com was not set up as a public website as that term is commonly understood; there was no home page, no links, and none of the common indicia of a website," the opinion states. "alex.kozinski.com was a collection of files and subdirectories that was created so the Judge and his family and certain close friends could access them remotely using a web browser."
However, the existence of the server became public after Kozinski sent a link to a video of himself bungee jumping as part of a "tongue-in-cheek" message to Underneath The Robes, a blog about the federal judiciary. But with that URL revealed to the public, it became easy for others to search the rest of the server, which was not password protected, nor did it have any other security protocols.
Later, when Kozinski found that members of the public had accessed the server, he instructed his son to take some security actions to prevent access, but the panel concluded that those actions were not sufficiently effective — and in any case, that Kozinski was unaware of the extent of the public's access into the server.
"Against this background, we base our findings on the record of the Special Committee’s investigation," the panel reported. "Some public reports have suggested that the Judge presented, or intended to present, the material in his stuff subdirectory as a website open to public browsing. This is incorrect; the record refutes any such characterizations. The material in the stuff subdirectory was plainly intended to be private and not to be presented as a public website."
The council also found that it was purely by chance that, when Kozinski asked for a trial over which to preside as judge, that he was given the Isaacs matter — thus debunking the commonly held belief that Kozinski had chosen that particular case to flex his judicial muscles.
"We find that the Judge's possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent," Judge Anthony Scirica wrote for the unanimous panel. "Moreover, once the Judge became aware in 2007 that offensive material could be accessed by members of the public, his inattention to the need for prompt corrective action amounted to a disregard of a serious risk of public embarrassment. We join with the Special Committee in admonishing the Judge that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary. We determine that the Judge's acknowledgment of responsibility together with other corrective action, his apology, and our admonishment, combined with the public dissemination of this opinion, properly conclude this proceeding."
As for Ira Isaacs, who became an unwilling participant to the entire affair, his motion for a verdit of acquittal on grounds of double jeopardy remains in progress. After two requests for extension of the deadline to file its response, the government finally did so in April, and Isaacs' attorney Roger Jon Diamond filed his response to the government's filing on June 17. No date for oral argument on the matter has yet been set by the Ninth Circuit Court of Appeals, which despite entreats from the Justice Department, still has jurisdiction of the case.