When the LA Times disclosed that Chief Judge Alex Kozinski had some “explicit images” on his personal website, it created a huge stir, opinions ranging from “so what” to “off with his head” from the Queen of Hearts. But the question of whether it was a “kerfluffle” or a “judge gone wild” is a sideshow. Judge Kozinski turned it into the main event by declaring a mistrial in the Ira Isaacs trial and recusing himself.
The problem is that handling cases is the job of a judge. Declaring a mistrial, under the rule of manifest necessity, is a measure of last resort. Both defendant and prosecution have an extremely keen interest in avoid mistrial once a trial has commenced, having selected a jury and allowed words to spill from their mouths. They are now committed, and prepared to take what is on the table and move it to completion. There are rulings at stake, language and allegations put before the jury, and a commitment to dealing with the heavily scrutinized tactics of the opposition. Try a case and you can appreciate how much goes into every word, glance, tilt of the head, point of the finger in a courtroom.
Certainly, this has caused Judge Kozinski and his family embarrassment. No one wants their personal peccadilloes displayed for all the world to see. Not that we all don’t have them, but we put on the serious face when we wear our serious clothes, and others would just as well pretend that there’s nothing more to us than that. While we may know that there’s a person underneath the robe, we’re just as happy not to look (except, of course, for David Lat, but that’s another story).
But now Judge Alex has allowed his personal embarrassment to scuttle a trial. He’s upped the ante by deciding that he cannot do his job as a judge. On the one hand, some may think that his decision is exemplary, by removing any possible taint of impropriety from the mix. But that suggests that there is a taint of impropriety; Not necessarily wrongdoing, but the appearance of wrongdoing which is enough to taint a judge.
As one commenter asked, had Kozinski been caught buying a Playboy, would we have this mess? I think the answer is clearly no. No one (well, maybe one person) would have cared at all. So he likes to look at naked women. BFD.
By allowing this tempest to affect the trial of Ira Isaacs, however, turns it from a silly personal matter to one of legal significance. Is he saying that he cannot be fair? Is he saying that his enjoyment of erotica, whether because of his sense of humor or personal predilections, precludes him from doing his job as judge? And if this is true of Judge Kozinski, is it not true of all judges?
Then we must now go on a witch hunt throughout the judiciary to find out whether any other judges suffer from a similar taint. Do you now or have you ever looked at a picture of a naked person? Will this be another disqualifying factor for the judiciary? For some of us, failure to do so (regardless of sexual preference) would be a far more troubling concern.
And while the focus has been on dirty pictures, another issue has cropped up at the ABA Journal. It seems that Judge Alex not only had the suspect images on his website, but some MP3s as well:
A tour of his website last month by the ABA Journal, on a tip from the same Los Angeles lawyer who gave the story to the LA Times, yielded, for example, more than a dozen mp3 music files, most of them songs by the parodist Weird Al Yankovic.
This raises the ugly specter of the RIAA swooping down on the 9th Circuit for their violation of copyright and sending threatening letters demanding $17,000,000 in penalties.
But the bigger question likely concerns access to those files for downloading rather than uploading. The ABA Journal searched in Google for “alex.kozinski.com” and “mp3” several weeks ago and found file-sharing websites with links to music on Kozinski’s website.
A lawyer who works for the recording industry, and who would not speak for attribution criticizing a federal appellate judge in a matter likes this, says that it doesn’t matter how difficult the route to the files, as long as they are accessible by the public for sharing it is problematic legally.
I suspected that the powers conferred on the RIAA to privately police these copyrights would eventually reach people in high places, though I suspect it to be more likely to reach George Bush then Alex Kozinski.
Yet, the bigger problem remains. If these few pictures (and possibly a few Weird Al songs) are sufficient to scuttle a federal trial and reduce the Chief Judge of the 9th Circuit to a quasi-pornographer copyright thief who is no longer qualified to sit as judge, then we are left with only a handful of geriatric jurists who can pass muster anymore. And frankly, I would really hope that our judiciary is staffed by people with a little more contemporary understanding of our world than that.
It’s plagued our universe of people who can meet the expectations of our purist, most self-righteous when it comes to elected office, where candidates who “smoked dope” were automatically excluded from the group of “appropriate” people. Until we realized that there was no one left to run except a handful of circus geeks and religious zealots who enjoyed personal conversations with their deity (where their god actually responded).
And now the Red Scare hits the courthouse.
Part of the blame falls on our criminalization of everything under the sun, making everyone a criminal for 15 minutes. Part of it comes from the fact that real people have failings, or more accurately, flaws. If we want judges to be real people, we have to acknowledge the fact that they too will have flaws.
One’s humanity is proven by the existence of flaws. Lest we forget our humanity, that’s why there are spouses.
Let Judge Alex Kozinski suffer the effects of his personal quirks at home. At the courthouse, let him be a judge. But now that’s brought his personal problems to work, he’s open hunting season on judges. He shouldn’t have done that.