Appellate Law

A Glitch In Kozinski?s Presiding over Obscenity Trial?

By Greg May

Ninth Circuit Chief Judge Alex Kozinski may be feeling a little embarrassed today. According to this piece in the Los Angeles Times, he accidentally posted materials from an obscenity trial on a publicly accessible portion of his web server that he thought was for private storage.

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as “funny.”

Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

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Kozinski said he must have accidentally uploaded those images to his server while intending to upload something else. “I would not keep those files intentionally,” he said. The judge pointed out that he never used appeals court computers to maintain the site.

Oops! It seems doubtful, however, that many people accessed the files:

Before the site was taken down, visitors to http://alex.kozinski.com were greeted with the message: “Ain’t nothin’ here. Y’all best be movin’ on, compadre.”

Only those who knew to type in the name of a subdirectory could see the content on the site, which also included some of Kozinski’s essays and legal writings as well as music files and personal photos.

Geek that I am, one of the more interesting aspects of this story is that Chief Judge Kozinski is actually presiding over the trial in U. S. District Court. Thus, the article addresses the appropriateness of his continuing to preside over the trial. Above the Law, which originally posted about this here, later dubbed Kozinski “Judge of the Day” and reported that its online poll (scroll down at that link) was running 60-40 against recusal as of this evening..

Stephen Bainbridge discusses the impact on Kozinski’s chances for elevation to the U. S. Supreme Court and poses an interesting and entertaining list of questions generated by the situation.

The story even made news n the U.K.

There are hundreds of reader comments at the Times and dozens more at the WSJ.com Law Blog post.

One thing about Kozinski’s presiding over the trial really jumped out at me (my emphasis):

The judge said it was strictly by chance that he wound up presiding over the Issacs trial in U.S. District Court in Los Angeles. Appeals court judges occasionally hear criminal cases when they have free time on their calendars and the Isaacs case was one of two he was given, the judge said.

Free time is not a luxury I would expect any chief judge of any circuit to have!

Full post as published by The California Blog of Appeal on June 11, 2008 (boomark / email).