Investigation Over Judge's Online Porn Put to Bed

Investigation Over Judge's Online Porn Finally Put to Bed
The Legal Intelligencer by Shannon P. Duffy and The American Lawyer by Susan Beck - July 8, 2009

Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit has been admonished for keeping sexually explicit material on a family Web site accessible to the public, but no discipline has been imposed on him. Judge Kozinski was "careless" and "judicially imprudent" in not safeguarding his files, creating "a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary," the 11-judge Judicial Council of the U.S. Court of Appeals for the Third Circuit, held in a 41-page unanimous opinion released Thursday. But the council concluded that Judge Kozinski had corrected the problem by removing the explicit material and destroying it. "The judge's acknowledgment of responsibility combined with the corrective actions he has already completed or has committed to pursue and his apology, along with our admonishment, made public in this opinion, properly remedy the problems raised by the complaint," Third Circuit Chief Judge Anthony J. Scirica wrote in In Re: Complaint of Judicial Misconduct, J.C. 03-08-90050. Judge Scirica said Judge Kozinski had "explained and admitted his error; apologized for it, recognizing its impact on the judiciary; and committed to changing his conduct to avoid any recurrence of the error."

The investigation was sparked by reports in The Los Angeles Times that said Judge Kozinski kept pornographic images on a Web site that was accessible to the public, including "a picture of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal," at a time he was presiding over an obscenity case. Judge Kozinski later said he never intended the images to be public, and the judge's son told The New York Times that it was his fault the site was not password-protected.
The Third Circuit panel agreed that "the material in the stuff subdirectory was plainly intended to be private and not to be presented as a public website." Judge Kozinski cooperated fully with the investigation and was examined under oath for three hours during a hearing in Philadelphia. He was found to be "credible and thoroughly responsive," according to the opinion. As part of the defense, Marc Holscher of Kirkland & Ellis, who represented the judge, submitted the ethics opinions of five law professors, who concluded that the judge had not engaged in any misconduct. (The opinion does not identify the professors.) Judge Kozinski testified that the files were likely e-mails attachments that people had sent him. He admitted that he did remember seeing some of the sexually explicit files. "Frankly, I don't know why I kept them," he testified. "Some I thought were odd or funny or bizarre, but mostly I don't have a very good reason for holding onto them. I certainly did not send them to anyone else or ask anyone to send me similar files." He characterized these materials as "highly offensive," "gross," "demeaning" and with "no redeeming value." The opinion noted: "[Kozinski] testified that he does not visit and has no interest in pornographic websites."

Judge Kozinski himself had called for the investigation, but the judicial council of the San Francisco-based Ninth Circuit asked that the matter be transferred to the judicial council of a different circuit due to "exceptional circumstances." That same day, U.S. Supreme Court Chief Justice John G. Roberts Jr. assigned the investigation to the Philadelphia-based Third Circuit's Judicial Council, led by Judge Scirica. Soon after, Judge Scirica announced he had appointed a special committee that included himself, Third Circuit Judges Marjorie O. Rendell and Walter K. Stapleton; Chief U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania; and Chief U.S. District Judge Garrett E. Brown of the District of New Jersey. The special committee was assisted by Robert C. Heim of Dechert and J. Gordon Cooney Jr. of Morgan, Lewis & Bockius. Thursday's ruling was issued by the circuit's Judicial Council, which consists of six appellate judges and the five chief judges of the district courts in Delaware, New Jersey and the eastern, middle and western districts of Pennsylvania. Writing for the council, Judge Scirica said it had dismissed claims against Judge Kozinski relating to his assignment to handle the obscenity prosecution and his decision to recuse himself from the trial when news broke about the material on his Web site. The investigation, Judge Scirica said, showed that Judge Kozinski had not requested the case, but was assigned to handle it by the Central District of California, and that Judge Kozinski had apologized for the disruption his recusal caused. No judicial discipline was called for, Judge Scirica said, because "a judge's recusal decision is merits-related and, as such, is not a subject for determination under judicial misconduct rules." Judge Kozinski said in a statement published on The Wall Street Journal Law Blog, "I asked the Third Circuit Court of Appeals to thoroughly review this matter, and I am pleased that today's unanimous decision reaffirms what I have said all along about my private files: They were kept on a private server and were not intended to be shared publicly. Our Ninth Circuit Court of Appeals has much important work to do, and I look forward to continuing to work with my colleagues to accomplish our goals."