Patrick capably documented and commented upon the strange case of Ninth Circuit judge Alex Kozinski, who shortly after he started a district court obscenity trial was discovered to have publicly accessible pornographic material on his personal server, and who later made some comments to the press minimizing those images. A few developments and comments:
First, Judge Kozinski has asked the Ninth Circuit Judicial Council to investigate him. That's an honorable and forthright course and what I would expect from Kozinski, who has a record and reputation for expecting ethical compliance. It would be difficult for Kozinski to do less, given the things he has written such as the blistering dissent from the Ninth Circuit's abject failure to hold Judge Manuel Real accountable for misconduct.
Second, both legal and cultural vultures are circling. Here's an article about expert disagreement over whether Kozinski should recuse himself from the obscenity case in question. And here's a demand for his resignation from the Concerned Women of America (a group concerned primarily, in my experience, with issuing screeds in an effort to enforce cultural, religious, social, and sexual orthodoxy in America).
Should Judge Kozinski recuse himself? The standard is set forth in 18 U.S.C. section 455, and I believe the relevant portions are these:
(a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(B)(1) might have applied if, as was reported initially, some of the images on Judge Kozinski's computer were from the materials claimed to be obscene in the case before them. There's been no evidence that is the case. Section (a), the appearance of partiality, is more problematical. I don't think that possessing pornographic material in general reasonably calls a judge's impartiality into question, even in an obscenity case — obscenity is an extremely small subset of pornography. What makes it a little harder is that there are reports that at least one of the items on Kozinski's computer featured what can be described as bestiality, and bestiality is one of the things that is featured in the films alleged to be obscene in the case before Kozinski. This is a problem because the government will likely argue that bestiality, by its nature, meets the test for obscenity; Kozinksi's simultaneous possession of (and, possibly, consumption of) bestiality materials reasonably calls his impartiality into question. [Edited to add: A commenter at the Volokh Conspiracy claims that what the reports are referring to here is a video of someone being pursued by an aroused bull after taking a dump in a field — that doesn't sound like bestiality, so this factor wouldn't apply.]
More troubling that that, to me, is Judge Kozinksi's comment to the press when his stash of pornographic materials was revealed: "'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.'" The reference to purience is a reference to one of the elements of the obscenity test; by speaking to the media about application of that test to his own materials, I think he reasonably calls into question his impartiality in the case currently pending before him.
Kozinski is brilliant, a great writer, and one of the best judges on the federal appellate bench; I say that despite the fact that I frequently disagree with him and despite the fact that he absolutely raked me over the coals for twenty minutes in oral argument a couple of years ago and then ruled against me. (I've also been smacked around during argument by his polar opposite, Judge Reinhardt; Kozinski provided the far more bracing experience). But this was a blunder. The blunder in leaving his computer accessible to the public is banal and technical. But his statements to the press were very ill-conceived. He should have followed my favorite advice to clients, which when in any doubt is a good way to deal with the media as well as police.
Edited to add: Larry Lessig has a very different and privacy-focused take.
Further edit: Prof. Volokh has a thoughtful defense here.
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