WASHINGTON, D.C. - Roger Jon Diamond, attorney for excremental artist Ira Isaacs, thought it was unusual when Alex Kozinski, the Chief Judge of the Ninth Circuit Court of Appeals, absented himself from that lofty post in order to relieve District Court Judge George E. King and preside over Isaacs' trial on charges of mailing obscene materials.
"I never knew that they could do it," Diamond told AVN, "and I'd never heard of it before, but apparently I later learned, after Judge Kozinski took over from Judge King, that he does this about once a year. Most judges don't do it but he likes to do it to sort of keep in shape to see what it's like to be a trial judge, and there is a statute that authorizes what he did; he didn't do this illegally. There is a federal statute that I think is rarely used, that allows an appellate judge to sit as a trial judge."
And while statistics on the number of occurrences do not appear to exist, if a federal statute authorizes an appeals court judge in a particular circuit to preside over federal trials in that circuit, it would certainly throw the federal judiciary into a tizzy if that action then required the entire circuit to recuse itself if such a trial led to an appeal, as federal trials often do - yet that's exactly the logic being used by Matthew W. Friedrich, Acting Assistant Attorney General of the Criminal Division, and U.S. Attorney Michael A. Rotker in their "Notice of Potential Need For Recusal of the Ninth Circuit Court of Appeals," filed Friday with the clerk for the Ninth Circuit.
The issues from which Friedrich and Rotker want the Ninth Circuit to recuse itself are the ones raised in Diamond's appeal of whether Kozinski properly recused himself as Isaacs' trial judge after it came out in the press that a website registered to Kozinski contained mildly sexual material, which the Los Angeles Times claimed was similar to the material that formed the basis of Isaacs' indictment - it wasn't - and also whether Kozinski had properly declared a mistrial in the Isaacs case - if in fact he did declare a mistrial. (Kozinski's Order of Recusal only stated that there was a "manifest need" for one, and no hearing was held with the parties to determine if one should actually take place.)
It can't hurt to recall that Friedrich was in the Justice Department's top echelon under Alberto Gonzales and one of the men to whom Obscenity Prosecution Task Force head Brent Ward complained that U.S. Attorneys Daniel Bogden of Nevada and Paul Charlton of Arizona weren't doing a good enough job in mounting obscenity prosecutions.
But despite the diminished respect the Justice Department has for the Ninth Circuit - it is the circuit most reversed by the Supreme Court, and is considered the most liberal circuit in the country - Friedrich and Rotker apparently could not bring themselves to put their concerns in the form of a formal Motion, instead taking the little-used path of sending a Notice "in order to alert the judges of this Court ... that they may wish to consider whether their participation in this appeal would be consistent with their obligation to recuse themselves from participating 'in any proceeding in which [their] impartiality might reasonably be questioned'," quoting from the portion of the U.S. Code which deals with the conduct of judges and justices.
The Justice Department's basis for the Notice is the fact that Kozinski, because of his website - not because of his actions during Isaacs' trial - is the subject of an investigation by the Judicial Council of the Third Circuit; a fact of which everyone on the Ninth Circuit bench is well aware.
"The United States was uncertain whether the judges of the Court were aware of these facts [the Kozinski investigation] and their relationship to this appeal," Rotker writes disingenuously. "[W]e concluded that it was appropriate to notify the Court of these circumstances so that its members could make an informed decision at an early stage of this proceeding whether their participation in this appeal would lead a 'reasonable person [to] perceive a significant risk' that the appeal will be 'resolve[d] ... on a basis other than the merits'," quoting from the Ninth Circuit's own 2008 case of United States v. Holland.
The Notice then goes on to recount some of the events involved in Kozinski's recusal from the Isaacs trial, which certainly make it clear why Kozinski himself should take no part in considering Isaacs' appeal.
What's less than clear is why the rest of the Ninth Circuit - 26 judges besides Kozinski -should recuse itself, which would mean that the appeal would be heard either by another circuit, or by non-Ninth Circuit judges sitting by designation.
"Just as the Department of Justice very cleverly obtained the recusal of Judge Kozinski the Government is now seeking recusal of the entire Ninth Circuit Court of Appeals," wrote Diamond in his "Opposition to Circuit Wide Recusal Notice." "With respect to the current suggestion by the Government that the entire Ninth Circuit recuse itself it is obvious that the Government wants to embarrass the Ninth Circuit by obtaining its recusal in this case."
"Defendant Isaacs opposes the recusal of the entire Ninth Circuit," Diamond continues. "If the Ninth Circuit were to do so, politics would enter into the selection of the replacement circuit judges. Not only would the selection of the replacement circuit judges be political, Defendant and Appellant Isaacs would be precluded from seeking a rehearing en banc because there apparently would be no mechanism for a full circuit court to entertain any such petition."
Rather, Diamond suggests, the Justice Department, if it feels that Ninth Circuit judges may be prejudiced in favor of Isaacs in some perverse showing of support for their embattled Chief Judge, should file a petition for certiorari with the U.S. Supreme Court - the only judicial body higher than the Ninth Circuit - to order the circuit to recuse itself.
"It [a cert petition] would obviate the need for recusal or even for considering recusal and it would speed up the process," Diamond argues. "Defendant and Appellant Isaacs has already agreed in writing to cooperate with such a procedure and would join in any request for a Supreme Court review of the underlying order denying the motion to dismiss on double jeopardy grounds."
Oddly, Diamond suggests that the government would not want the U.S. Supreme Court to consider a Motion to Recuse the Ninth Circuit because of Justice Antonin Scalia's track record of failing to recuse himself from several high-profile cases, most notably Cheney v. United States District Court for the District of Columbia, which considered whether Vice-President Cheney should be forced to release the list of attendees at an energy policy summit which Cheney convened in early 2001. Cheney won that case, and Scalia, Cheney's duck-hunting buddy, got a ration of shit for taking part in the decision.
"It is obvious from Justice Scalia's opinion [in Cheney] he does not cave in to pressure and threats," Diamond argues. "Moreover, it is clear that Justice Scalia did not think much of the Los Angeles Times, which apparently criticized Justice Scalia a number of times for not disqualifying himself on certain cases. It is also important to note from the Cheney decision that Justice Scalia did not have confidence in the accuracy of reporting by newspapers including the Los Angeles Times... The Obscenity Prosecution Task Force knows that it is extremely likely that the U.S. Supreme Court would rule that Chief Judge Alex Kozinski should not have recused himself because he had done nothing wrong. Moreover, his recusal was the result of Government pressure and intimidation and was unnecessary given the posture of the case - that jeopardy had already attached."
In other words, since Isaacs' trial had already begun and testimony had been taken, if a mistrial were declared and such ruling were found to be improper, Isaacs could not be tried again for those same crimes, since "jeopardy" would have attached, and the Constitution prohibits placing a defendant on trial twice for the same offenses - a fact that Kozinski, as Chief Judge, well knew, and likely would have taken steps to avoid.
The question of whether Kozinski's recusal was proper and legally justified is important for reasons far beyond the Isaacs case.
"If Judge Kozinski's recusal stands he would never be able to sit on a Ninth Circuit Panel dealing with an obscenity case or, indeed, perhaps any case involving the First Amendment," Diamond rightly points out. "Moreover, he could not participate in rehearings as the Chief Judge if the decision of the District Court [overruling Isaacs' double-jeopardy claim] stands in this case."
Diamond has his suspicions as to why the government sent this "Notice," and also as to why it filed a motion with the Ninth Circuit to advance the schedule of briefing and argument in the Isaacs case, so that instead of briefs being due in January and February, with argument sometime in March or April, that it all be done before the end of 2008. That motion was denied on Thursday.
"The obvious reason is to try to get this case reset for trial before United States Senator Barack Obama is sworn in as President of the United States on January 20, 2009," Diamond wrote. "The Government does not actually explain its motivation for trying to get the case heard as quickly as possible but that is the only explanation," adding later, "It is a matter of common knowledge that political conservatives in Washington, D.C. have been trying to split the Ninth Circuit for years."
"I think the Obscenity Unit is going to be disbanded once Obama takes over," Diamond told AVN. "I think they're fighting for their lives here in terms of trying to salvage this case."
Isaacs himself agreed.
"The Justice Department is, like the McCain campaign, desperate, so they're trying to move up the dates so it comes faster than the Ninth Circuit scheduled," Isaacs said. "They're also trying to have the whole Ninth Circuit recused. In other words, no one on the Ninth Circuit could be fair because they know a judge who recused himself. This is like the McCain campaign: So fucking desperate."