Disrobing His 'Honor'

Judge Alex Kozinski should recuse himself from his current obscenity trial, and consider whether he has so undermined public confidence in the judicial system that he should resign from the bench.

After his exposure this week for maintaining a Web site with pornographic content, Kozinski, the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, asked an ethics panel of the circuit court to investigate his conduct, [1] promising his full cooperation. Kozinski also suspended the obscenity trial [1] he began presiding over in Los Angeles federal district court until next Monday. The prosecutor requested time [2] to explore Kozinski's potential conflict of interest in maintaining a Web site with sexually explicit material similar to that at issue in the trial.

Kozinski initially acknowledged that he posted the material on his Web site, and that he “shared” some of the material with friends.” According to Scott Glover, a reporter for the Los Angeles Times who's been covering the case, Kozinski is contradicting his earlier [1] admission that he posted the images himself:

After publication of a latimes.com article about his website Wednesday morning, the judge offered another explanation for how the material might have been posted to the site. Tuesday evening he had told The Times that he had a clear recollection of some of the most objectionable material and that he was responsible for placing it on the Web. By Wednesday afternoon, as controversy about the website spread, Kozinski was seeking to shift responsibility, at least in part, to his adult son, Yale.

Kozinski sent the following e-mail [3] to an online legal tabloid, “Above the Law”:

David: I can't comment on the trial.

As for the other matter, the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was -- I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there.

I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.

Although Kozinski's Web site is shut down, another site has posted images that “were reportedly captured from Kozinski's site” by “an aggrieved attorney” [who] “encouraged the Los Angeles Times to discover the pornographic material” in December, 2007 and “by others on the morning of June 11, 2008 after the story broke.”

One of the photos shows a small child who appears to be simulating a sex act on a man dressed as a priest. Another depicts a male, who could be under the age of 18 years, performing a sex act on himself. A third shows two women painted as cows on all fours exposing their genitalia. Another has two women seated in front of a “Bush for President” poster exposing their genitalia. The photos appear to match those described in the Times, [4] which Kozinski described as “humorous.”

Washington Post reporter Carrie Johnson portrays Kozinski as a victim in her article, “Judge Assailed over Sexually Explicit Images on Web Site.” [5] Johnson cites the Times' coverage, but fails to mention Kozinski's apparent contradictions as reported by the Times.

According to Glover, “The judge said he didn't think any of the material on his site would qualify as obscene. 'Is it prurient? I don't know what to tell you,' he said. 'I think it's odd and interesting. It's part of life.'” Kozinski sounds like every defendant in every obscenity case every charged, including Isaacs, “It ain't obscene, it's life.” But Kozinski isn't just anybody.

The ethics panel should consider the following:

Kozinski began presiding in a trial involving laws Kozinski may have violated. Does his involvement with pornographic content show his unwillingness to apply the law to himself?   Has he become so desensitized by viewing pornography that he's incapable of rendering impartial judgment and fulfilling his duty to give the people a fair trial in U.S. v. Isaacs or future obscenity cases? Has he given contradictory statements regarding his Web site, which undermine his integrity? Do his statements reveal ignorance of obscenity law or his unwillingness to abide by the law? According to the Times, Kozinski's Web site greeted visitors with: “Ain't nothin' here. Y'all best be movin' on, compadre.” If he thought his site wasn't accessible by the public, why the greeting? If he knew the pornographic subdirectory he now says was “private” was accessible by others, it would still violate federal law if the material is obscene. Has he violated federal obscenity or copyright laws? Can plaintiffs in sexual harassment cases in which Kozinski might preside at trial or on appeal expect him to take their claims seriously if he finds sexually degrading images of women and men humorous? Has he failed to “avoid the appearance of impropriety” [6] required by the canons of judicial ethics:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge.

A judge may … engage in … avocational activities that do not detract from the dignity of the judge's office or interfere with the performance of the judge's judicial duties.

Kozinski's “withering 39-page dissent' [7] in 2005, when he “ripped into his colleagues for going soft on a Los Angeles federal judge accused of misconduct.” Kozinski's own words: “Justice, we tell ourselves--and I do believe this--is done if the law is applied without regard to the outcome in a particular case.” “Federal Judge Alex Kozinski's 1996 Slate Diary,” [8] in which “Kozinski shared details from his personal and professional life.”

The panel could censure or publicly reprimand [9] Kozinski, reduce his case load or ask him to voluntarily retire if it finds that he has engaged in conduct that violates the canon of judicial ethics. As a federal judge, Kozinski has lifetime tenure and could be removed from office only for an impeachable offense. If the panel finds grounds for impeachable conduct, it must be reported to the Judicial Conference of the United States.

A sympathetic Times editorial [10] on Thursday urges Kozinski "to recuse himself because the Web site controversy has become a distraction and will undermine public trust in the verdict.”

No objection here.

Jan LaRue is a member of the Culture and Media Institute's [11] Board of Advisors.