A panel of federal judges admonished Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, on Thursday for being “judicially imprudent” and “exhibiting poor judgment” by placing sexually explicit photos and videos on an Internet server that could be accessed by the public.
Kozinski’s conduct had “created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary,” according to the panel’s opinion, written by Anthony J. Scirica, chief judge of the U.S. 3rd Circuit Court of Appeals.
The judges ruled, however, that Kozinski’s actions did not constitute judicial misconduct. The disciplinary proceedings should end with the public admonishment, they wrote, noting that in testimony in a closed-door hearing, Kozinski had stated that he had “caused embarrassment to the federal judiciary,” had apologized and had “committed to changing his conduct to avoid any recurrence of the error.”
The opinion quoted Kozinski as acknowledging that some of the material he maintained on his server was “highly offensive,” “gross,” and “demeaning.”
According to the opinion, Kozinski testified “that some members of the public, upon learning he possessed the material, may have the misimpression that he has demeaning or disdainful attitudes toward women, creating in the minds of some people what he called ‘a highly distorted picture’ of him,” the opinion said.
The opinion said that Kozinski was “credible and thoroughly responsive” to the panel’s questions and had fully cooperated with the judicial inquiry.
In a statement issued after the release of the panel’s decision, Kozinski said the judges’ opinion had affirmed that the materials in question were intended to be private.
“Our 9th 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,” he said.
The proceedings stemmed from a Los Angeles Times article published in June 2008 when Kozinski was presiding over a high-profile obscenity trial in Los Angeles. The Times article reported that Kozinski had “maintained a publicly accessible website featuring sexually explicit photos and videos” but had intended it to be private.
The Times story described several of the files, including a photo of two nude women posed on all fours and painted to look like cows.
After being interviewed for the article, Kozinski immediately blocked public access to the site. Two days after the story was published, he declared a mistrial in the obscenity case and called for an investigation of his own actions. Because Kozinski is chief judge of the 9th Circuit, the case was transferred to the 3rd Circuit.
Kozinski’s supporters saw vindication in the outcome, noting that the panel accepted his position that he had never intended the material to become public and that the judges had not censured or reprimanded him.
“The conduct involved was intended to be private. The judge took reasonable, although insufficient, steps to keep it private, and that behavior does not constitute judicial misconduct,” said Steven Lubet of the Northwestern University School of Law, one of five legal scholars who wrote to the panel stating that Kozinski had committed no misconduct.
Arthur Hellman, a University of Pittsburgh law professor who has written about the 9th Circuit and the federal judicial disciplinary process, said in a telephone interview Thursday that the opinion was a “very carefully, very self-consciously written decision.”
“It’s wrong to say it cleared him,” Hellman said. “The opinion very carefully does not say that.”
The panel noted that “some media reports in June 2008" were incorrect when they “suggested that the judge maintained, and intended to maintain, a public website.” The opinion did not say which publications had used that description. The Times stories referred to the site as “publicly accessible.” The opinion affirmed that the site was “publicly accessible” and traced the history of Kozinski’s actions regarding access to it.
According to the opinion, Kozinski decided to connect his family’s private server to the Internet in 2002, “as a convenient means to access personal files while away from home.” Items in the "/stuff” directory, where the explicit files were located, were moved onto the server. Kozinski testified that he’d been collecting the items over the years, and that some had never been opened.
As The Times reported in earlier stories, visitors to the server were greeted with a screen that read: “Ain’t nothing here. Y’all best be moving on, Compadre.”
Only users who knew to add "/stuff” to the address would have found the objectionable material, which was “a small fraction of a vast aggregation of various items that the judge had received by e-mail over many years,” according to the opinion.
The judicial panel said its investigation showed that in 2004, the judge sent a message to a blog that included a link to a video on the server. That link included “the name of the stuff subdirectory, compromising its ‘security through obscurity’ ” on which the judge had relied, the opinion said.
After that, the directory containing the explicit files was indexed by Yahoo! and perhaps other search engines, the opinion said.
In 2005, the judge became aware that some people with whom he had shared links could view files and took steps to limit access, the panel found.
Late in 2007, the judge became aware that despite his steps to limit access, “it was still possible for uninvited people to access and browse” the files, the opinion said. At that point, he began deleting material from the site, but stopped after deleting three files because locating the material was “time-consuming, difficult and tedious” at a time when he was preparing to start his term as chief judge.
As previously reported, The Times was first alerted to the existence of the explicit files by Cyrus Sanai, an attorney in Beverly Hills. He is identified in the panel opinion as “a critic of the judge and other 9th Circuit judges, against whom he has previously filed complaints of judicial misconduct in connection with litigation involving his family.”
The opinion said that “once the judge became aware in 2007 that offensive material could be accessed by members of the public, his inattention to the need for prompt corrective action amounted to a disregard of a serious risk of public embarrassment.”
In his testimony, Kozinski said, “I recognize I should have been aware of the danger, and I should either have taken my server off line or worked diligently to remove the files that were sexually explicit and offensive.
“I was careless in that regard. And for that, I am very sorry and offer my sincere apology.”