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July 2, 2009 4:32 PM

Judicial Panel Admonishes Kozinski for Sexually Explicit Files

Posted by Susan Beck

After apologizing for "allowing his personal conduct to embarrass the federal judiciary," Ninth Circuit chief judge Alex Kozinski was reprimanded by the Third Circuit's Judicial Council for inadvertently allowing public access to highly embarrassing images that were stored on his computer. No discipline was imposed.

"His conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary," wrote Third Circuit chief judge Anthony Scirica.

The 41-page opinion can be found here.

The disciplinary case, which had been filed by Kozinski himself, was transferred to the Third Circuit by the order of U.S. Supreme Court chief justice John Roberts. Kozinski was represented by Marc Holscher of Kirkland & Ellis. A special committee of five Third Circuit judges who investigated the matter was assisted by Robert C. Heim of Dechert and J. Gordon Cooney, Jr., of Morgan, Lewis & Bockius.

Kozinki's problems began when a disgruntled lawyer with a record of vexatious litigation named Cyrus Sanai gained access to files on Kozinski's personal home computer. For technical reasons we won't try to explain here, these files became accessible to the public after Kozinski in 2004 sent a video link of himself bungee jumping to Underneath Their Robes, an irreverent blog about federal judges. After Sanai snooped around in Kozinski's files, he found some sexually explicit photos and videos, and alerted the Los Angeles Times.

In June 2008 the L.A. Times reported, incorrectly, that Kozinski maintained a Web site with these images, and raised questions about whether he should be presiding over an obscenity trial. Judge Scirica stressed that Kozinski did not create a Web site of these materials, and that, instead, the images were stored as files on a server. The opinion, however, rather surprisingly repeats the most salacious details about the images, noting that they included "a photo of naked women on all fours painted to look like cows," "a video of a half-dressed man cavorting with a sexually aroused farm animal," and "a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair."

After the L.A. Times article appeared, the judge declared a mistrial in the obscenity case, recused himself, and filed the complaint against himself.  For earlier articles about this controversy from our sibling, The Recorder, click here and here.

Kozinski cooperated fully with the investigation and was examined under oath for three hours during a hearing in Philadelphia. He was found to be "credible and thoroughly responsive," according to the opinion. As part of the defense, Kirkland's Holscher submitted the ethics opinions of five law professors, who concluded that the judge had not engaged in any misconduct. (The opinion does not identify the professors.)

Kozinski testified that the files were likely e-mail attachments that people had sent him. He admitted that he did remember seeing some of the sexually explicit files. "Frankly, I don't know why I kept them," he testified. "Some I thought were odd or funny or bizarre, but mostly I don't have a very good reason for holding onto them." He characterized these materials as "highly offensive," "gross," "demeaning," and with "no redeeming value." The opinion noted: "[Kozinski] testified that he does not visit and has no interest in pornographic Web sites."

In particular, the panel criticized Kozinski's failure to take proper action when he became aware in 2007 that his computer files were publicly accessible.

Although the panel concluded that Kozinski should not be disciplined, it did use fairly harsh language to chide him. "We find that the Judge's possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent," Judge Scirica wrote. "Moreover, 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."

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