Just when you thought it was safe to go back to the 9th Circuit, there’s a new explosion of interest in Chief Judge Alex Kozinski.  His wife, lawyer Marcy Tiffany, has come to her husband’s defense, writing an email that was posted on Patterico’s Pontifications.

[T]he LA Times story, authored by Scott Glover, is riddled with half-truths, gross mischaracterizations and outright lies. One significant mischaracterization is that Alex was maintaining some kind of “website” to which he posted pornographic material.

She makes a good case, and proceeds to rip into the source of the story:

I think that there is another very important piece of this story that has not received the attention it deserves, and that is the role of Cyrus Sanai.

Cyrus Sanai, a disgruntled attorney/litigant, has widely claimed credit for engineering this smear campaign. In a 2005 decision, District Judge Zilly USDC Western District Seattle, describes Sanai’s conduct in a case before him as “an indescribable abuse of the legal process, unlike anything this Judge has experienced in more than 17 years on the bench and 26 years in private practice: outrageous, disrespectful, and in bad faith.”

This part of her argument, all too familiar to criminal defense lawyers when a client is accidentally shot by cops and then smeared by a prior criminal record as if to suggest that killing him was no big deal anyway.  So what if Cyrus Sanai is an unsavory lawyer; That doesn’t have anything to do with Judge Kozinki’s conduct.

But for a judge who clearly wanted to get this behind him, Tiffany’s email served to open a new chapter to the story, and give it longer legs than it had before.  It may not have been her purpose, but it was certainly the effect.

According to the WSJ Law Blog, Larry Lessig has taken the offensive by attacking the media, including the blawgosphere, for smearing Judge Kozinski.

Parsing “the Kozinski mess”: Lessig says the real Kozinski mess is “the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective.” Lessig writes: “The real story here is how easily we let such a baseless smear travel – and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.”

Well, hold on a minutes.  Does Lessig suggest that we should ignore an article in the LA Times because we don’t have personal knowledge of all underlying facts and haven’t personally and individually verified each and every one? 

Does Lessig argue that this “baseless smear” is wrong, but takes no issue when the “baseless smear” affects someone who isn’t as near and dear as Judge Kozinski?

This is yet another twist of interest to the Kozinski story.  While some commentators, like Eugene Volokh, have been up front about their connection to, and relationship with, Judge Kozinski, to the point of openly admitting that his ideas should “properly be discounted because of my bias,” others have not been as open.  Still others have been downright disingenuous, making argument in support of Kozinski that fly in the face of their actions as to everyone else.

David Lat, who has feasted on unsubstantiated gossip at Above the Law as well as his blog dedicated to sifting the salacious from the judicious, Underneath Their Robes (where he blogged anonymously as Article III Groupie, or A3G as he came to be known), joins the chorus.  But does the former AUSA explain his sudden conversion?  Isn’t this the guy who is first on line (and online) to publish a smear of any lawyer or judge?  In fairness, Lat’s connection to Kozinski is well-known to his long-time followers, but the new reader would be left out in the cold.

Jon Katz, posting at Underdog about whether Judge Kozinski’s recusal and mistrial order implicates double jeopardy for Ira Isaacs, whose trial was scuttled as a result of all this, addresses whether this “scandal” constitutes manifest necessity for a mistrial.  Jon writes:

As much as I dislike self-censorship, I suggest that a mess of the current magnitude should have been reasonably foreseeable by Judge Kozinski over his uploading sexually explicit images to the Internet. Of all trials to take as a supplement to his appellate judging, it is surprising that Judge Kozinski would have taken this one.

Regardless of whether one loves, hates or doesn’t feel much either way about Judge Kozinski, the fact remains that he’s a judge.  As such, he was in a position that exposes his professional life, and anything arguably wrong or sordid in his personal life, to scrutiny.  He knew that.  We know that.  The question of whether it truly matters, or whether it would have gone public had some disgruntled lawyer not gone after him, is another matter.  Judge Kozinski was flying too close to the sun, and he is clearly smart enough to have known better.

So while I do not believe that the many attacks on Kozinki were entirely justified, and I do not agree that recusal was the necessary and inevitable outcome of the disclosure and ensuing “scandal”, I similarly reject Judge Kozinki’s defenders effort to shift the blame to the media, or the blawgosphere, for creating what Lessig calls the baseless smear.  That’s life on the big bench, and Judge Alex should have been smart enough, and tough enough, to handle it. 

And as long as we’re talking about internet integrity, I hope that Larry Lessig and David Lat maintain their overt concern for truth and accuracy in the media when the person smeared isn’t a personal friend.  I have a few clients who would benefit from their position as well, and I trust that they will do the same for my clients as they’ve done for Judge Kozinski.  But I won’t hold my breath.