The blogs and media are abuzz with the news that Ninth Circuit Chief Judge Alex Kozinski's website apparently contained questionable material. Some people are defending him, though certainly not all.
Judge Kozinski's wife spoke out in support of her husband in this blog post, as did Stanford Law Professor Lawrence Lessig in this post. Kozinski's wife, Marcy Tiffany, says an article which originally appeared in the LA Times mischaracterized the material on his website saying, "[t]he fact is, Alex is not into porn — he is into funny — and sometimes funny has a sexual character." The ABA Journal has more as does the Volokh Conspiracy, LawBeat and TalkLeft's Jeralyn, who is now "firmly in Judge Kozinski's corner."
Meanwhile, How Appealing is reporting that Chief Justice John G. Roberts, Jr. has assigned the U.S. Court of Appeals for the Third Circuit to "conduct inquiry into Ninth Circuit judge Alex Kozinski's online posting of pornographic images, mp3 files, and other materials." The post notes that the Third Circuit's Chief Judge is Anthony J. Scirica, who is widely viewed as the most protective of First Amendment rights amongst federal appellate judges. The other judges assigned to the investigatory panel are: Marjorie O. Rendell and Walter K. Stapleton (of the 3rd Circuit); and two chief U.S. District Court judges - Harvey Bartle III of Pennsylvania and Garrett Brown Jr. of New Jersey.
Professor Lessig explained how the Kozinski story came to light:
For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski's son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.
The disgruntled litigant, who also posted comments on the Volokh Conspiracy, maintains a website critical of the Ninth Circuit. Here are some other related posts and articles: Simple Justice, Feminist Law Professors, Lessig's Blog, The Associated Press. The ABA Journal also has an article discussing a somewhat different ethical issue: the fact that Judge Kozinski's site "contained copyrighted music mp3 files that until recently could possibly be downloaded by others."
Also, How Appealing reports that the ABA Journal "has posted online a remarkable letter dated October 12, 2007 from L. Ralph Mecham, former director of the Administrative Office of the United States Courts, which accuses Ninth Circuit Judge Alex Kozinski of having committed a criminal offense in 2001 against the federal judiciary's computer system that constituted a felony under federal law."
The Underdog Blog discusses some of the interesting legal issues that are beginning to emerge from the Kozinski Kerfuffle. In particular, the post focuses on whether double jeopardy has attached with Kozinski's declaration of a mistrial (and whether such a declaration was necessary in the first place). I admit to being a bit distracted by some of the tabloid details of the story and not considering the legal issues which Katz at the Underdog Blog addresses.
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