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Mistrial Declared in Obscenity Case, Judge Removes Himself

By Jeralyn, Section Crime in the News
Posted on Sat Jun 14, 2008 at 01:38:00 AM EST
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9th Circuit Chief Judge Alex Kozinski has declared a mistrial and recused himself from presiding over an obscenity trial following revelations this week that he had s!xually expl!cit material on his own personal website. (TChris' background is here.)

"In light of the public controversy surrounding my involvement in this case, I have concluded that there is a manifest necessity to declare a mistrial," said Alex Kozinski, chief judge for the 9th Circuit Court of Appeals. "I will recuse myself from further participation in the case and will ask the chief judge of the district court to reassign it to another judge."

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    Mistrial Declared in Obscenity Case, Judge Removes Himself | 25 comments (25 topical)

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    Jeralyn... (5.00 / 1) (#16)
    by Addison on Sat Jun 14, 2008 at 02:37:42 AM EST
    ...let me take this chance to thank you profoundly for covering these sorts of issues. I imagine nomination partisanship could get in the way of what you're trying to do with your blog re: crime and legal issues. But it really is appreciated. It's needed. Thanks.

    I have a question about obscenity (none / 0) (#1)
    by MarkL on Fri Jun 13, 2008 at 11:54:23 PM EST
    --specifically child p05nography.
    What about the issue of people being held liable for breaking the law when the possess material which is digitally altered to have that appearance, but isn't the real thing?
    I'm not sure what I think, myself.

    Completely virtual ... (none / 0) (#2)
    by Alec82 on Fri Jun 13, 2008 at 11:55:37 PM EST
    ...or morphing technology?

    Parent
    I'm thinking of the latter, but (none / 0) (#4)
    by MarkL on Sat Jun 14, 2008 at 12:01:54 AM EST
    with no children performing, obviously.

    Parent
    Congress tried to make that illegal (none / 0) (#8)
    by daryl herbert on Sat Jun 14, 2008 at 01:07:38 AM EST
    It passed a law that anything pretending to be CP is illegal.

    The reason is not so much that they want to get rid of "virtual CP," it's that every defendant on a CP charge now claims: "That's not real CP, that's CGI.  And you have to prove it beyond a reasonable doubt.  I bet half the jury saw Jurassic Park."

    If Congress makes fake CP illegal, that defense would become irrelevant/nonexistent.

    But that raises First Amendment issues.  If CP is illegal because making it necessarily harms children, "virtual CP" doesn't really harm them, at least not in a similar way.

    Parent

    Well, those defenses are... (none / 0) (#11)
    by Alec82 on Sat Jun 14, 2008 at 01:27:28 AM EST
    ...hard to substantiate, since the National Center for Missing and Exploited Children has a database available to experts.  They just cross-reference to identify known victims.  And they have other experts who can distinguish (or argue over) virtual CP from actual CP.

     And most of these defendants have too many files for that defense to work, in any event.  Plus, there are jury instructions on the issue.

     Virtual CP, I don't care about.  No children are harmed in the making of that.  A bigger problem, though, is that the technology may develop so that it is nearly impossible to distinguish between real and virtual CP.  That would present major issues for law enforcement.

     As far as morphing...some of it fits within the definitions and remains unprotected, as I recall.  I haven't formed much of an opinion.

    Parent

    I wonder (none / 0) (#19)
    by Steve M on Sat Jun 14, 2008 at 11:49:11 AM EST
    if it ever became practically impossible to distinguish between the two, and one type came with a long prison sentence and the other one didn't, how many people would really keep making real CP?

    Parent
    Supremes dealt with this . . . (none / 0) (#22)
    by JDB on Sat Jun 14, 2008 at 03:12:22 PM EST
    in Ashcroft v. Free Speech Coalition (2002).  Basically, if something isn't produced using an actual child, it doesn't qualify as child p0rn under Ferber.  There was another case this term that upheld the post-Ashcroft "pandering" statute, which might touch on some similar areas, tho'.

    Parent
    This entire thing... (none / 0) (#3)
    by Alec82 on Sat Jun 14, 2008 at 12:00:31 AM EST
    ...really took me by surprise, for a few reasons:

     1. I wasn't aware there were any obscenity trials in CA's central district.  I guess I shouldn't be surprised given the administration, they are certainly trying obscenity cases elsewhere, but LA seems inopportune.

    1. What in the hell was he thinking?

    2. Who maintains websites for private and familial use that combine legal writing and hard core pornography?


    Not prosecuted by the LA USAO (5.00 / 1) (#12)
    by ExFed on Sat Jun 14, 2008 at 01:27:51 AM EST
    The prosecution is by the Bush Administration's obscenity task force, created in 2005.  It's not prosecuted by the Los Angeles USAO.  The task force, headed by a questionable political appointee and staffed with his lackeys, is generally held in contempt by current and former AUSAs -- as is their focus.  The task force chose the case and the venue.  I suspect they hope to establish that even in Los Angeles they can win an obscenity case.

    Although I'm sure it makes federal judge William Keller happy.  He used to berate AUSAs in his courtroom because their office no longer prosecuted obscenity.  Even if they were appearing in front of him on completely unrelated things, like bank robberies.

    Parent

    Interesting (none / 0) (#15)
    by Alec82 on Sat Jun 14, 2008 at 01:44:27 AM EST
    That makes more sense. AUSAs are obviously reluctant to touch these cases for (various) reasons.

     I had heard about this trend, years ago, for their Extreme Videos (or whatever the name was) obscenity prosecution.

     In any event, thanks.

    Parent

    can you repost without using the (none / 0) (#6)
    by Jeralyn on Sat Jun 14, 2008 at 12:55:26 AM EST
    p word in full, just put in a few asterisks? The site will get banned by businesses and law firms that use software to filter those words. They can't distinguish between it being used in a legal context and for less acceptable purposes. Last time it happened, it took me days to track down the company and get the ban removed.

    Parent
    Oh, certainly (none / 0) (#7)
    by Alec82 on Sat Jun 14, 2008 at 01:02:49 AM EST
    I apologize. I wasn't aware that was an issue. Of course.

    Parent
    BTW... (none / 0) (#9)
    by Alec82 on Sat Jun 14, 2008 at 01:14:15 AM EST
    ...how do I go about reposting?

    Parent
    Questions Answered + links to pr0n (none / 0) (#10)
    by daryl herbert on Sat Jun 14, 2008 at 01:24:41 AM EST
    1. I wasn't aware there were any obscenity trials in CA's central district.  

    This is the first.  And apparently, the pr0ns is really, really nasty.  Bestiality, scat, and one video in which a woman performer is crying through the whole thing because it's so vile.  Even California has some standards.

    2. What in the hell was he thinking?

    He's an arrogant jerk/egomaniac and maybe he kind of wanted to get caught.

    3. Who maintains websites for private and familial use that combine legal writing and hard core pornography?

    It's not really hard corn pr0ns.  Patterico* has links to a lot of it (he's in contact with the lawyer who tattled on Kozinski, who saved a bunch of the content from Koz's site before Koz took it offline).  Everything I have seen from that site is softcore, and it all has a humor aspect to it.

    That doesn't mean you, gentle reader, would find it to be humorous.  But it's at least trying to be funny (or, like the women painted as cows, it's just plain odd).  Calling it hardcore is not accurate.  Here's my Lloyd Bentsen moment: I know hardcore pr0n.  I view hardcore pr0n.  And that is not hardcore pr0n.

    And as a law student with a law job, let me just say, legal writing + hardcore pr0ns is about 1/2 of my web surfing.  So I can see the theoretical attraction.

    * I would link to it, but you can find it on your own by putting that word into Google, and Jeralyn probably doesn't want me linking to a site with links to those pictures.

    Parent

    Heh, well.. (none / 0) (#14)
    by Alec82 on Sat Jun 14, 2008 at 01:36:53 AM EST
    ...as a law student, I can certainly understand.  I have seen the images, actually, and of the few I saw I suppose hardcore is unfair.

     Having worked at a federal defender's office, however, I was unaware there were obscenity prosecutions (outside of one I heard of in the N.Dist) in CA.  CP is, of course, a different matter.  

     Actually, I know a few people who worked with Kozinski.  They had...strong opinions.  

    Parent

    He should also recuse himself (none / 0) (#5)
    by Foxx on Sat Jun 14, 2008 at 12:46:45 AM EST
    from any trials involving women in any way. I understand there were pictures of women dressed as cows.

    And he should recuse himself from trials with men (5.00 / 1) (#13)
    by daryl herbert on Sat Jun 14, 2008 at 01:28:14 AM EST
    because there is a picture of a male bungee jumper covered with his own feces, and a picture of a young man fell**ing himself.

    No.  Absolutely not.  His crude sense of humor is an equal opportunity offender.  You should not be so quick to claim sexism.

    Parent

    On second thought (none / 0) (#17)
    by Alec82 on Sat Jun 14, 2008 at 03:23:46 AM EST
    After reading about who was responsible for this "leak," I have much more sympathy for Judge Kozinski.  Whatever his flaws, this was unwarranted.

    Hopefully.... (none / 0) (#18)
    by kdog on Sat Jun 14, 2008 at 08:49:12 AM EST
    the state will drop this bullsh*t prosecution now.

    I was shocked to learn there was an obscenity trial going down in the land of the free in 2008...thought I stepped into a time warp to the Hoover era.

    What's the name of that young guy (none / 0) (#20)
    by Xanthe on Sat Jun 14, 2008 at 02:45:19 PM EST
    on Morning Joe - because he dissed Larry Eagleburger who apparently introduced Cindy McCain at some event.  The gist was who cares about this guy?  Does he even know who Larry Eagleburger is?  Has he ever read anything about him.  He is a respected and experienced foreign service officer in the Bush I administration. Does this guy know when he was 32 he directed the immensely successful relief activities, including a hospital construction in Skopje (the capital of Macedonia).  As well, President Carter named him ambassador to Belgrade due to his knowledge of the area.  He understood the forces of Yugoslavia breaking up as well as the American mindset.  He knew after his last trip to Yugoslavia it was the end of one era and the beginning of another.

    From David Haberstram's book:

    Men like Eagleburger...had done extremely well in confronting previous crimes and tensions, where for more than 40 years those who wore the black hats were always clearly labeled -- they were communists....It no longer bore a recognizable brand name that would cause Washington to spring to readiness. It was a different world.

     But Larry Eagleburger was aware of changes (and tried to pass this along to President Bush).  He understood the unraveling of Yugoslavia.

    Here's a thought for MSNBC:  read history instead of Sen. Obamna's press releases once in awhile if you're reporting to the nation.

    A respected moderate Republican of the stripe of Brent Scowcroft who served the country admirably.

    Just wanted to get off my chest - I'm a Democrat and even I know this.  

    My first comment and I put` (none / 0) (#21)
    by Xanthe on Sat Jun 14, 2008 at 02:49:26 PM EST
    it in the wrong place.  How embarrassing is that?

    Parent
    well, even though it's in the wrong place (none / 0) (#23)
    by lilburro on Sat Jun 14, 2008 at 05:27:52 PM EST
    it does seem like you know your stuff.  Speaking for me only, it's all good :)

    Parent
    Well lets hope.. (none / 0) (#24)
    by jazzcattg1 on Sat Jun 14, 2008 at 06:12:34 PM EST
    That "Mr. Naughty" - Judge Nottingham has the decency to remove himself from similar cases as well

    "Manifest Necessity" or Double Jeopardy? (none / 0) (#25)
    by Peter G on Sat Jun 14, 2008 at 08:01:02 PM EST
    Unless the defendants consented (which I haven't read they did), resuming the trial would constitute prohibited double jeopardy (see Fifth Amendment) unless Judge K is correct that there was a "manifest necessity" to declare the mistrial.  I suggest there was not, even though the judge (probably correctly) saw a need to recuse (disqualify) himself mid-trial, since his "impartiality could reasonably be questioned." 28 USC 455(a).  Federal Rule of Criminal Procedure 25(a) allows a different judge to take over a trial in progress from a judge who has become "disabled" in any way, as long as the new judge familiarizes him/herself with what has happened so far.  Since that could have been done here, I would say there was no "manifest necessity" for a mistrial and the defendants should go free.

    Mistrial Declared in Obscenity Case, Judge Removes Himself | 25 comments (25 topical)

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