Probe of judge shifted to court in East
A panel of federal judges on the East Coast was selected Monday to oversee a misconduct probe into California Judge Alex Kozinski, who declared a mistrial last week in an obscenity case he was presiding over after acknowledging that he had posted sexually explicit material on his publicly accessible personal website.
Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, requested the investigation after an article in The Times described the website and its contents.
At the request of the Judicial Council of the 9th Circuit, the investigation will be handled by judges outside Kozinski’s circuit. U.S. Chief Justice John G. Roberts Jr. transferred the matter to the 3rd Circuit Court in Philadelphia, and the chief judge there appointed a special committee to investigate.
Walter K. Stapleton, one of the judges appointed to the five-member panel, said Monday evening that he was unaware of the allegations against Kozinski and had no details on how the proceedings would be conducted.
“I just got drafted, and I have no idea what’s contemplated by way of a next step,” Stapleton said in a brief telephone interview. He added that misconduct proceedings involving judges were typically confidential.
Arthur Hellman, a professor at the University of Pittsburgh School of Law and an expert on federal judicial misconduct proceedings, said he thought it was unprecedented for a special panel in one circuit to investigate alleged misconduct by a judge in another circuit. He predicted that panel members would first decide how broad their probe would be and whether there were any disputed facts that would require the appointment of a special counsel.
“They may not know yet for a little while how much they’re investigating,” he said.
Hellman said the federal statute under which judges can be punished pertains to “conduct prejudicial to the effective and expeditious administration of the business of the courts.” If the investigation reveals that Kozinski posted sexually explicit material made available to the public, he said, it could lead to a finding that he “cast disrepute on the federal judiciary.”
Hellman said the issue would likely revolve around “just how private this [material] was.”
Kozinski could not be reached for comment Monday evening.
The Times reported last week that Kozinski posted sexually explicit photos and videos on his personal website.
Among the items were a picture of two nude women painted to look like cows; a file with dozens of pictures of women in snug-fitting clothes that outlined their genitalia; a picture of a man fellating himself; a video of a couple simultaneously orally copulating one another; a video of a naked woman showering and massaging her breasts; a striptease slide show featuring a transsexual; and a step-by-step pictorial depicting a woman shaving her pubic hair.
There was also a video of an encounter between a half-dressed man and a sexually aroused farm animal.
Some nonsexual material on the website might also be considered demeaning to women. There was a mock mathematical equation presented as “proof that girls are evil” and a photo of a woman and her daughter sharing a book titled “Becoming a Bitch.”
In an interview last week, the judge said he thought the site was a private storage area to which the public did not have access.
He defended some of the material as funny but acknowledged that other items were inappropriate. For example, he said he found the cow photo “degrading . . . and just gross.”
Kozinski blocked public access to the site after being interviewed by The Times. After publication of the article, Kozinski said his adult son had told him that he might have placed some of the sexual content on the site.
The Times reported that visitors to the site, which contained a hodgepodge of photos, videos, essays, music files and other materials, were greeted by a message telling them: “Ain’t nothin’ here. Y’all best be movin’ on, compadre.” Adding "/stuff” to the address revealed the directory containing the sexually explicit material.
The items were found by Beverly Hills attorney Cyrus Sanai, who was engaged in a dispute with the judge. Sanai alerted The Times.
Kozinski was presiding over the obscenity trial of Hollywood filmmaker Ira Isaacs when the article was published. Isaacs was accused of violating federal obscenity laws by distributing hard-core pornographic films depicting acts of bestiality and defecation. He planned to defend the materials as works of art.
After The Times article appeared, the judge issued a 48-hour stay when the prosecutor asked for time to explore “a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here.”
Two days after ordering the stay, Kozinski declared a mistrial in the case.
On Monday, the judge’s wife, Marcy Tiffany, assailed The Times’ coverage of the judge’s site.
The Times articles were “riddled with half-truths, gross mis-characterizations and outright lies,” she said in a statement posted on the blog patterico.com.
“Alex is not into porn -- he is into funny -- and sometimes funny has a sexual character,” she wrote. “The tiny percentage of the material that was sexual in nature was all of a humorous character.”
The Times was unable to reach Tiffany, but she authenticated her e-mail to the website to the Associated Press.
Times California Editor David Lauter said in a statement that the articles were “fair and accurate” and “speak for themselves.”
The stories “raised important issues on a matter of significant public concern,” Lauter wrote. “The judge was presented with the facts once the matter became newsworthy and was given a full opportunity to respond. We took his responses into account before publication and included what he said in our stories.”
Hellman, the law professor, said he could not guess at a timetable for how quickly the proceedings regarding Kozinski would unfold.
Developments so far, he said, have happened with “astonishing speed” for the federal judiciary. As for what’s next, he said, “there’s no book to go by.”