Son of 9th Circuit Chief Judge Says He Maintained Racy Website

Judiciary

Son of 9th Circuit Chief Judge Says He Maintained Racy Website

Posted Jun 12, 2008, 04:40 am CST
By Debra Cassens Weiss

Updated: The son of Alex Kozinski, the chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals, says he maintained the website with sexually explicit pictures that was shared by his father.

News reports of the website prompted Kozinski to issue a statement late Thursday inviting a potential investigation into his conduct.

"I have asked the Judicial Council of the Ninth Circuit to take steps pursuant to Rule 26, of the Rules Governing Judicial Conduct and Disability, and to initiate proceedings concerning the article that appeared in yesterday's Los Angeles Times," Kozinski wrote Thursday in a two-sentence statement seeking the internal review. "I will cooperate fully in any investigation."

(Meanwhile, as discussed in a subsequent ABAJournal.com post, Kozinski has recused himself from hearing a federal district court obscenity case over which he happened to have been randomly selected to preside, in a situation which helped fan the flames further when his own postings became public.)

Among the content on the site was 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. Kozinski told the Los Angeles Times on Tuesday evening that he hadn’t realized the website could be accessed by the public. He told the paper then that some material was inappropriate but some was funny.

Other images on the site reportedly included masturbation, public sex and a step-by-step pictorial of a woman shaving her pubic hair.

"Is it prurient? I don't know what to tell you," he told the newspaper. "I think it's odd and interesting. It's part of life."

Kozinski’s son, Yale, told the New York Times yesterday evening that he maintained the site, which also included family photos and some of his father’s articles. “This server is my private Web server,” Yale Kozinski said. “It’s owned by me. The domain is registered to me. The people who have access to put files up there are friends and family.”

Alex Kozinski was presiding over a high-profile obscenity trial when the news broke. The Associated Press reports he suspended the trial yesterday to give lawyers time to consider the issue. He indicated he would be willing to recuse himself but noted the trial had already begun and jurors had begun considering evidence, including two graphic movies.

In Tuesday's interview with the Los Angeles Times, Alex Kozinski said he had posted some of the explicit materials and he might have uploaded other items by mistake. Yesterday he spoke to the New York Times and sent and e-mail to Above the Law that said his son apparently uploaded some of the items.

“Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was—I was surprised that it was there,” Alex Kozinski told Above the Law. “I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there. I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.”

The judge sounded a similar note in the New York Times interview, which described his comments as “moderately contrite.”

“I guess I should be more careful about access and all,” he said. “I didn’t put anything on there I think would be embarrassing.”

AP spoke to Beverly Hills, Calif., attorney Cyrus Sanai, who said he had told the Los Angeles Times about the images on the Kozinski website. He said he found them while monitoring the site as part of a dispute with the 9th Circuit in connection with his parents’ divorce. He said he contacted reporters at various publications since January in an effort to expose them.

Updated at 3: 28 p.m., June 13, 2008, to include subsequent ABAJournal.com post.

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Posted by Paul - 5 months, 1 week, 4 days, 10 hours, 59 minutes ago

Boy, one would think that we had First Amendment protections in this country. Of course, that has not been true for the last eight years. Now, everything must be scrutinized and interpreted in the worst light. People need to be punished for expressing themselves else we will have someone like Scot McClellan running around speaking his mind.
Posted by Matthew - 5 months, 1 week, 4 days, 1 hour, 17 minutes ago

It sounds like an unfortunate mistake of maintaining a web server that was publicly accessible.

The fact the Judge Kozinski offered to recuse himself from the ongoing obscenity trial and asked the Judicial Council to initiate investigatory proceedings shows his true character. I hope he weathers the storm…
Posted by Lee - 5 months, 1 week, 3 days, 22 hours, 13 minutes ago

This Judge and his family are prototypical white trash. Interpreted and scrutinized in the worst light? How would you interpret public sex, masturbation, shaving pubic hair and sexually aroused farm animals on a Judge’s “family” website right next to to family photos…“True character” - Nothing in this article notes any character or integrity by the Judge as he was pushed to make this move.
Also not surprised to read that the left wing media tried to bury this matter after the party that leaked the information tried to contact numerous reporters since January.
Posted by Please... - 5 months, 1 week, 3 days, 22 hours, 13 minutes ago

Come on.

Posting pornographic material on a web server paid for with tax dollars is not a First Amendment right and does not show “character,“ at least not good character.

Sorry, I just don’t think you can blame Bush for this guy posting this rubbish on the web server.
Posted by John - 5 months, 1 week, 3 days, 22 hours, 5 minutes ago

This appears to be a smear campaign initiated by a disgruntled attorney. A naked woman painted to look like a cow…a step-by-step tutorial demonstrating how to shave pubic hair…big deal. Maybe Kozinsky even subscribes to Playboy. Who cares, and why should it matter? Unless he was posting child porn or otherwise supported pornography in which someone was harmed, then there should be no reason for public concern.
Posted by Please... - 5 months, 1 week, 3 days, 22 hours, 2 minutes ago

Okay…

I stand corrected. It was not a public server paid for with tax dollars.

I still stand by my comment about not being able to blame Bush, though. I also think it is still in a valid public concern that a judge has such demeaning views of women (as nothing more than sex toys to view when you want to get your rocks off).
Posted by Elsie the Cow - 5 months, 1 week, 3 days, 21 hours, 59 minutes ago

MOOOOOOO!!! I am offended by this obviously anti-bovine exploitation.
Posted by John - 5 months, 1 week, 3 days, 21 hours, 52 minutes ago

Mr./Ms. “Please”: The above article suggests (albeit by Yale Kozinsky’s own statements) that the web server is owned, registered, and maintained by Yale Kozinsky. How did you deduce that the public’s tax dollars funded this web server? One might believe that Kozinsky has a poor sense of humor and is interested in strange things, but I don’t think the content specified in this article reflects poorly on Kozinsky’s fitness to be a judge.
Posted by Gina - 5 months, 1 week, 3 days, 21 hours, 49 minutes ago

“Unless he was posting child porn or otherwise supported pornography in which someone was harmed…“ Uhm, last I checked, bestiality was a crime in most states.
Posted by Lee - 5 months, 1 week, 3 days, 21 hours, 49 minutes ago

So is that where we have come as a society John? Should child porn or “harmful” pornography wherein the participants are injured be the only criteria for “obscenity”? Have we no intergrity or moral fiber wherein we don’t consider bestiality an abomination? I know, I know…those horses and farm animals love to have penises and foreign objects inserted in their orifaces but should we continue to allow this in our society? Is that not the very point of the current litigation? The pendulum of the 1st A has swung so far that we have lost sight of it entirely. Not to mention, are we surprised that the Judge claims he “accidentally” downloaded some material and is more than happy to throw his family members “under the bus”?..Pathetic.
Posted by John - 5 months, 1 week, 3 days, 21 hours, 41 minutes ago

Okay, I agree that there are other forms of sex-related material that are obscene. I also agree with your comments about bestiality. I’m not so certain that there were any images of bestiality posted on Kozinsky’s cite though. The animal may have been aroused for any number of reasons.
Posted by desertlawyer - 5 months, 1 week, 3 days, 21 hours, 34 minutes ago

I am still trying to figure out what I think about this whole mess and trying not to rush to judgment either way. But I have to address “Lee’s” comment about the “left wing media” trying to “bury” this story. HUH? Judge Kozinsky is a Reagan appointee. The Los Angeles Times (often accused of being “liberal”, I personally think it is a pretty fine example of the Fourth Estate) broke the story. It is the kind of story that one would want to be especially careful to have the facts before reporting. So this all adds up to the “left wing media” trying to “bury” the story? Some people seem to see everything through one lens.
Posted by Lee - 5 months, 1 week, 3 days, 21 hours, 20 minutes ago

You are correct Desert…the Judge was also considered for the SC. The “facts” were readily apparent on the website…no? Verification would have taken minimal steps. No surprise, I have a bias towards conservatism and the “left wing” media comment was gratuitous.
Posted by desertlawyer - 5 months, 1 week, 3 days, 20 hours, 44 minutes ago

I listened to an in-depth interview with the LA Times reporter yesterday. I don’t think the “facts” were as readily apparent as one might think. Anyway, thanks for admitting your bias. I try to have (not always successfully) a bias toward fairness and the truth, hard as it is to ferret out and as complicated as it almost always is. :-)
Posted by Lee - 5 months, 1 week, 3 days, 20 hours, 11 minutes ago

Desert we are all subjective to some extent in our beliefs and analysis despite our best efforts to be as objective as possible. I am also for fairness and truth and please (at least in my case) do not confuse “conservatism” with “republicanism” as they have become very non-congruant (IMO). Truth can, in some sense, be a relative term as the media barons filter, shake and distill everything and always love to use their suggestive adjectives, etc….get’s tedious at times. That being said, my real point is that (this particular Judge aside) should we continue to protect “obscene” speech such as bestiality, pornography, etc. under the guise of the 1st A? We all acknowledge that “free speech” is not an absolute right and has it’s limits….where do we draw (or re-draw) that line?
Posted by BlackSheep - 5 months, 1 week, 3 days, 19 hours, 55 minutes ago

This is not about which President appointed him, or whether he has “the right” to read, upload, “accidentally upload,“ etc. This is about what acts and behaviors are acceptable…not for any individual, but for a judge. Judges are held to higher standards, both by formal ethics rules and by informal traditions of garnering “respect” from the citizenry.

Having donkey schlongs or sheep arse or whatever this wacko had on his computer or accessed by his computer (his WORK computer, not his home computer) is not exactly the sort of thing that reinforces respect and trust in the judiciary.

Now you can pummel me with your cries of 1st Amendment and individual rights. Your arguments are based on politics and your own stance on the individual spectrum of liberalism v. conservatism (and who cares who appointed him? Justice Stevens was appointed by President Ford) But the fact is that a well-known judge, regardless of liberal slant, used his work computer to peruse and apparently upload pictures of dog boners and non-pussy…cat…shaving.

You can lawyerize this all you want, but the public doesn’t want the judge perusing the pubic while the court is in recess. It just fosters disrespect of the judge and for the legal system. Further, y’all foster further disrespect by defending him so angrily or self-righteously. The fact is, we should all be saying (of any judge in this situation) “d’oh!“ There must be some common floor to what constitutes acceptable behavior of judges at work.
Posted by desertlawyer - 5 months, 1 week, 3 days, 19 hours, 51 minutes ago

To Lee—You said: We all acknowledge that “free speech” is not an absolute right and has its limits….where do we draw (or re-draw) that line?

Well,now, there’s a question for the ages that wiser, smarter folks than I have debated! No answer to it from me!. But I always thought “true"conservatism was about keeping government regulation and interference to an absolute minimum.If that is the case, I would think the conservative position would be more towards “leave those pornographers alone.“ Not trying to start a whole new discussion, sorry!
Posted by BlackSheep - 5 months, 1 week, 3 days, 19 hours, 45 minutes ago

Perhaps this is permissible for a working judge as well? http://www.usatoday.com/news/nation/2006-08-18-judge-sentenced_x.htm
Posted by John - 5 months, 1 week, 3 days, 19 hours, 42 minutes ago

This is terrible - the Judge needs to avoid even the appearance of impropriety - he should set an example and resign making a positive comment/ headline that would make any Judge proud. He needs more respect for the position. I’m sorry, but he brought this on by his action.
Posted by ApeDersen - 5 months, 1 week, 3 days, 19 hours, 31 minutes ago

i’m pretty sure bestiality is not an issue here, otherwise the video would have been described as such. Really, what does constitute “cavorting”?

However, it seems that none of the posters have read any of Judge Kozinski’s opinions. They are awesome, to put it briefly. i often disagree with him, but his admixture of legal reasoning and human understanding is a credit to the bench. Tossing him for garden-variety carelessness would be a huge loss.
Posted by associate - 5 months, 1 week, 3 days, 19 hours, 24 minutes ago

He has seen porn and maybe has nudie mags, therefore he can’t properly rule on motions?

Is this really the kind of society we want to live in? Does this mean that I can’t be a lawyer because I got in a fight as a kid? Seriously, where does the silliness end?

If the facts were that the guy was into obscene stuff himself, like beastiality or child porn, that’s one thing. However, those aren’t the facts. So what gives, I guess it’s juicy gossip, and just because “everyone hates lawyers” we now have to crucify every lawyer who someone writes an unflattering story about.

How would you guys feel if someone had a survielance tape of you buying a playboy or putting one in your mailbox, and then everyone piled on with “he can no longer be an officer of the court because he doesn’t respect the position”? This is just ludicrous.

And to the ladies (and most of the guys too) out there, how many have accidentally gotten more drunk than they intended to? Are you sure no one got any pictures or video? Surveilance tape? Do you want to lose your livelihood and MAJOR investment in your education over that?

I’m thinking we might want to pipe down a little for everyone’s benefit unless you’re going to jump on everyone who does something of questionable moral terpitude (hint: all of us do something questionable at some time or another).
Posted by 900yearsofexperience - 5 months, 1 week, 3 days, 19 hours, 16 minutes ago

Hilarious! A pervert judge overseeing an obscenity trial. What pray tell, would the outcome be?

I just can’t stop laughing at Kozinski’s explanation that such things like bestiality, women made up like animals and such, are simply, “a part of life,“ and “funny.“
Posted by BlackSheep - 5 months, 1 week, 3 days, 18 hours, 58 minutes ago

Associate: funny how all of your examples are of lawyers or judges doing things outside of the courtroom or on free time rather than at work.

Yes, you can be a lawyer if you got into a fight as a kid. But you can’t really be a respectable judge or lawyer if you get into physical fights…in the courtroom or at work.

Yes, it would indeed be over-the-top for a surveillance tape of one buying a playboy, etc. to bring about removal as an officer of the court because such off-work, out of court actions were deemed “disrespectful” to the position. But you can’t really be a respectable judge or lawyer if you peruse Playboy or as here, cow/woman vaginas, in the courtroom or at work.

No, “accidentally” (?) getting drunk on video or in pictures should not be grounds for disbarment or being stripped of one’s livelihood [side note: this is your weakest position since the Bar is very concerned about substance abuse and your “accidental” excuse is a bit sketchy…but I’m going with you on it]. But you can’t really be a respectable judge or lawyer if you get “accidentally” drunk…in the courtroom or at work.

Hint: while you may believe that all of us do something questionable at some time or other, the overwhelming majority of us do not do something questionable…while in the courtroom or while at work.

If drunken, fighting, Playboy-reading lawyers and judges could be found at trials and in chambers, then sorry but that really is NOT the kind of society I want to live in. Not because I’m against drinking or fighting or Playboy-reading in the proper context. But because doing this sort of stuff at work/in chambers/in court strips the legal system of respect. And properly so.
Posted by worker - 5 months, 1 week, 3 days, 18 hours, 37 minutes ago

BlackSheep, how do you know that Kozinsky was perusing the sexually explicit images on his son’s web server while he was in his chambers or courtroom, or on his work-based computer? I have not seen any evidence of this.
Posted by Paige Bigelow - 5 months, 1 week, 3 days, 18 hours, 30 minutes ago

I don’t see in the article that the website had any connection to the judge’s work. The article indicates that the website was his son’s, maintained by his son, on which family and friends could upload files. He wasn’t even aware, apparently, that his son had uploaded these files onto the website. How does this equate to the judge perusing cow vaginas in the courtroom?
Posted by Chris - 5 months, 1 week, 3 days, 18 hours, 6 minutes ago

Sometimes you have to dig a little to get the facts straight. Stanford law professor Lawrence Lessig points out that one frequently mentioned video—which involves a man running away from a donkey—is available on Youtube, and is not, as is implied by the Times article, bestiality. He also argues that the Kozinski family’s right to privacy has been violated when the disgruntled litigant exposed the private files which were not intended for public viewing. He has more to say about the issue on his blog…
http://lessig.org/blog/2008/06/the_kozinski_mess.html
Posted by Nicole - 5 months, 1 week, 3 days, 17 hours, 41 minutes ago

Doesn’t anyone else find it convenient that in the first interview about the story, Judge K said that it was his website and that he uploaded the content? He said that his friends sent him various pictures and if he thought they were interesting or funny he’d post them. Then, after the LA Times reporter explained to Judge K that some people would surely find the photos offensive, Judge K’s son was actually the person responsible for uploading the photos and maintaining the website and that family members also uploaded photos. Presumably, Judge K forwarded the emails from his friends to his family and then his family, including his son, uploaded them.

While I find the description of the content disgusting and offensive, and while I think a federal appeals court judge should have more common sense than to do this or be connected with this (the URL for the site was his name, wasn’t it?), I’m sure he has some First Amendment right to do what he did.

What I find more astonishing is that he had music files on his website that appear to be unauthorized for public distribution (since the website was publicly available). Wasn’t there a Ninth Circuit opinion about this very activity? Actually, weren’t there countless Ninth Circuit opinions about this activity? Of course, this was probably the son, too.

What a schmuck! Tossing his own son under the bus when he gets busted for his randy and elitist behavior. Shameful.
Posted by Larry's Got A Big Head - 5 months, 1 week, 3 days, 17 hours, 37 minutes ago

Chris, I do hope that Larry Lessig wasn’t actually making an argument that someone who posts something on the internet that is accessible by anyone with a connection has an expectation of privacy. PUH-LEEZE! I suppose someone standing naked in their living room with the drapes open on a bright, sunny day have an expectation of privacy, too. Do people talking on cell phones on buses have an expectation of privacy?
Posted by df - 5 months, 1 week, 3 days, 17 hours, 11 minutes ago

What a pervert!!! If Judge K finds images of naked women on all fours painted as cows important or funny enugh to keep and upload he probably doesn’t hold women if very high regard. I’d hate to be a female attorney representing a client in his court. Think of the images that must be in his head as he “neutrally” hears oral argument. And then there’s the weaselly way he “doesn’t remember” what he uploaded…If he has any decency at all he’ll resign rather than further besmirch the reupuation of the judiciary.
Posted by associate - 5 months, 1 week, 3 days, 16 hours, 16 minutes ago

Blacksheep,

Read the article. You’re nuts man. We ARE talking about private here, NOT AT WORK.

df,

I find that your rush to judge and execute besmirches teh reputation of the bar and bench. If you have any decency, then you’ll resign your current position and give up your law license.

(not as much fun when it comes back around is it?)
Posted by R - 5 months, 1 week, 3 days, 16 hours, 7 minutes ago

None of us should rush to judgment until we actually see the pictures ourselves. (Well, maybe not the “cavorting with aroused farm animal” one.) So… where are the pictures posted? An informed citizenry needs to know.
Posted by V - 5 months, 1 week, 3 days, 15 hours, 55 minutes ago

This whole thing is ridiculous. How can “obscenity” be determined when images which fall far far far below what is “obscene” at trial, lead to the all this public naysaying & fingering. In case nobody knows, the internet has lots of actual porn and it’s legal. Here we are with one of the most presitgious judges in the country being forever smeared because of a quasi-private web-server shared with his son that had pictures of naked people that are otherwise availible on the internet.
The argument seems to be that he as a judge should be “above” such things. Why should he have to recuse himself? Because he isn’t as puritanical/biased as we expect in our public figures. Instead he apparently found things funny/amusing that many other people find funny/amusing. Aren’t community standards the standard for obscenity? Isn’t the “standard of the community” tainted by the media’s faux-righteous-indignation, which seems to be shared by many many people here.
Posted by David - 5 months, 1 week, 3 days, 15 hours, 52 minutes ago

I assume everyone on this comment string works in the justice profession. It’s sad to discover that lawyers are full of the same prejudicial urges as everyone else trolling internet comment pages. The first rule of justice is to remove the plank from your own eye before you point out the speck in someone else’s. Apparently there are many out there who consider themselves pure and blameless, or disingenuously compartmentalize and deemphasize their own shortcomings.
Posted by bj - 5 months, 1 week, 3 days, 14 hours, 38 minutes ago

What’s the big deal here? I think the first amendement is still alive
Posted by Lake Perriguey - 5 months, 1 week, 3 days, 13 hours, 52 minutes ago

This is absurd. This is legal content. As if having ever had a drink of alcohol would preclude a judge from fitness to preside over a drunk driving child. This is all the more reason we should, like Oregon has done, completely do away with a legal definition of obscenity and let the market of ideas determine the fate of poop porn!
Posted by jeanie - 5 months, 1 week, 3 days, 12 hours, 40 minutes ago

re: #35, Having a pornographic website is not like having a drink. A better analogy would be whether a habitual drunk driver is fit to preside over a drunk driving trial…and the answer is NO. Judges are not imune to the human tendency to sympathise with those with whom they feel an affinity. A judge is less likely to be truely impartial if he has walked in the shoes of the defendant, and committed the same transgressions. And even if a judge were to be truly neutral, it creates an impression of bias, and discredits the judge’s ruling in the eyes of the public.
Posted by Isabella - 5 months, 1 week, 3 days, 10 hours, 57 minutes ago

Ok, this is really insane! I understand that when one thinks of a Judge, the thoughts of “naughty” pictures and video don’t really go hand-in-hand, but the Judge’s personal interests have nothing to do with his actions on the bench. I’m sure all of us have things in our lives that we would not be proud of if they were publicized to the entire country, so I truly don’t see what the big deal is about his website. It’s not like it depicted anything illegal: there is no proof that it was bestiality and there was no child pornography. It’s unfortunate that this information became public, and if I was in his shoes, I would be absolutely mortified, but that doesn’t mean that he has to be ‘executed’ for it. And I have to respectfully disagree with Jeanie. There is no truly neutral person, no matter how much we want to pretend that judges are robots and have no personal feelings. If we take your approach, then does that mean that a criminal defendant can never get a fair trial, because a judge who has always been a law-abiding citizen would be biased in favor of the government? I believe that what a judge has experienced in the past or what he is engaging in or believes in should not be used against him and thought of as influencing his judicial decisions. The only time that that should be scrutinized is when those beliefs or experiences are ACTUALLY influencing the judicial decision.
Posted by RES - 5 months, 1 week, 3 days, 10 hours, 10 minutes ago

Well stated, Isabella!

Personally, I have friends who send me all sorts of emails. Some, admittedly, are beyond tasteless, and others, though of questionable taste, DO get a smile from me. If my computer were hacked, and my email histories downloaded and made public, many of the posters above would apparently want me permanently excluded from the legal profession, if not castrated to boot!

The one thing we all must remember is that judges are people, too.
Posted by workingforpennies - 5 months, 1 week, 3 days, 4 hours, 13 minutes ago

Isabella, read jeanie’s words more carefully, she said “even if a judge were to be truly neutral,“ she is not setting forth a requirement, rather only presenting a hypothetical.

The question here isn’t whether a judge has a right or not to view porn. By all means they can watch all the porn they want. However, when they are placed in a role in which such proclivities are related to the subject matter they are to preside over, then it may be reasonably inferred that their personal biases may unduly influence the result of a trial. Judges, as public figures with decision making power and legal authority, absolutely must avoid any hint of impropriety. Impropriety extends to their public as well as private lives. Public figures are judged by both their public and private activities.

Regardless of whether the materials he posted were bestiality or not, Kozinski has no one else to blame but himself for creating this awkward situation. By posting some pretty strange pornography online, in the middle of overseeing a trial about of all things, extremely weird pornography, he’s opened the door to legitimate criticism regarding his personal biases.
Posted by LRF - 5 months, 1 week, 2 days, 20 hours, 47 minutes ago

“Alex Kozinski was presiding over a high-profile obscenity trial when the news broke. The Associated Press reports he suspended the trial yesterday to give lawyers time to consider the issue. He indicated he would be willing to recuse himself but noted the trial had already begun and jurors had begun considering evidence, including two graphic movies”

Wait a minute! If Alex Kozinski is the Chief Judge of the 9th Circuit Court of Appeals, how on earth could he be presiding over a trial?
Posted by Charles Hinkle - 5 months, 1 week, 2 days, 16 hours, 15 minutes ago

LRF, circuit judges often sit as district judges by designation; Kozinski typically does so a couple of times a year.
As for the comment about “who cares who appointed him”—if this had been a “liberal” judge appointed by a Democrat, Fox “News” [sic] and other guardians of our public morality would be playing this story non-stop, and demaning impeachment. And they would no doubt be asking Barack Obama if he had ever met Judge Kozinski, and how dare he socialize with a man who puts pornography on his website. The images on the Kozinski website include some very graphic photos of sexual activity and of a slide show, intended to be amusing, featuring photos of several androgynous individials. The viewer is invited to guess whether the individual is male or female—and it then gives the answer in vivid photographi detail. If this kind of thing had been found on the computer of Justice Stevens or Justice Souter, the right-wing would be foaming at the mouth.
Posted by barbara res - 5 months, 1 week, 2 days, 11 hours, 25 minutes ago

4th try at posting
message same but smaller and smaller
suppose he uploaded pictures of Nazi paraphrenalia or Dixie flags
Think it would be so funny?

Can you say sexism? Can you say double standard?

BR
Posted by BlackSheep - 5 months, 1 week, 2 days, 7 hours, 18 minutes ago

So this site has been blocking my post supposedly because I “may be spam” or whatnot. I wrote this yesterday at 12 noon or so…

To my fans (Associate, Worker and Paige):

“Read the article.“ Read the article? Is that what you use in your own rush to judgment? A single article? Gosh, the article does not say that it was on his work computer. But how do you think it was found?

By “routine maintenance” and “random checks” per OTHER sources. One is O’Reilly…OK well that’s about as reliable as Judge K’s flip-flopping story of how the content got there. Let’s try these:

http://www.law.com/jsp/article.jsp?id=1202422200406

http://www.guardian.co.uk/world/2008/jun/12/usa2

http://ap.google.com/article/ALeqM5h3YrphWBHw1j30UUB9VLtw5pBkOQD918QHUG1

That’s just three…it is clear from these articles that Judge K had a problem with filters on his work computer and removed them on his own seven years ago and later fought to have them removed entirely.

Do you think that someone went into Judge K’s home and searched his home computer? Hardly. They found this in the cache and browser history of his work computer. The points that he claims he did not “maintain” the website from work and/or that his son is the real guy who maintained the site are moot.

Associate: your attack on “df” is so juvenile. All df was doing was giving examples to my summary point: 1st Amendment issues and privacy issues are great for “out of the office” legal eagles, but you can’t hide behind them when you are at work. There are clear ethics rules and court cases that hold the bench and bar to a higher standard. And the fundamental reason for that is so “we the people” respect our legal system. If Judge K is a known peruser of porn, and is known to have “defeated” the filter mechanisms on work computers and “won” the day for having filters removed at work…what more do you need?

It sounds to me like you, Associate need to brush up on how to bolster an argument. That is with outside sources. You also need to learn to tone it down when presenting your view. You were the first to “rush to judgment” by telling all of us to “pipe down.“ And then rather than confront df with facts, you confront him with what you must believe is some witty “in your face” retort about things coming “back around.“

The FACT is that the Bar and the courts have rules of ethics. The THEORY behind them is so that we all have respect for the courts. The FACT is that rushing to judgment in an internet forum such as this is not grounds for coughing up one’s law license. Try to make a cogent, logical argument backed with data and not vitriol.

If you disagree with someone, smack them down with facts and logical theory. That is how I handed you your *@& [um, “hat’] in my first post. Just because your bare baby bottom is smarting and red from the spanking doesn’t mean you have to go all emotional. Your anger belongs…on a cow’s body?

And tell us the name of your firm so that we can avoid it.
Posted by Greg - 5 months, 1 week, 2 days, 3 hours, 7 minutes ago

I think the issue is this. Posting obsene trial evidence to any server without the consent of the parties involved is more than wrong. Regardless of politics, left wing , right wing, It shows the true character of this judge and his family. I would expect a judge to have higher morals than that.
Posted by associate - 5 months, 1 week, 19 hours, 36 minutes ago

Let’s try this reading comprehension thing again for Black sheep and Greg. Yale is the son, Alex is the judge, and Cyrus is the disgruntled practicioner who dug up the dirt and started this firestorm. Additionally, this is not the trial material, but a bunch of junk from email forwards and other random sources. Without further adue, the relevant portions of the article:

“Kozinski’s son, Yale, told the New York Times yesterday evening that he maintained the site, which also included family photos and some of his father’s articles. “This server is my private Web server,” Yale Kozinski said. “It’s owned by me. The domain is registered to me. The people who have access to put files up there are friends and family.”

“Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was—I was surprised that it was there,” Alex Kozinski told Above the Law. “I assumed I must have put it there by accident, but when the story broke, Yale called and said he’s pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don’t remember putting some of that stuff there. I consider the server a private storage device, not meant for public access. I’d have been more careful about its contents if I had known that others could access it.”

AP spoke to Beverly Hills, Calif., attorney Cyrus Sanai, who said he had told the Los Angeles Times about the images on the Kozinski website. He said he found them while monitoring the site as part of a dispute with the 9th Circuit in connection with his parents’ divorce. He said he contacted reporters at various publications since January in an effort to expose them.“
Posted by cecil - 5 months, 1 week, 16 hours, 56 minutes ago

Judge K drafts brilliant opinions, whether you agree with the outcomes or not. We could use a few more judges like him.
He is a libertarian minded, in your face kind of jurist. Is it possible that he unleashed this story himself just to get a conversation started? Just sayin’...

But naming his kid “Yale”?
Now, that is creepy.
Posted by Cavin - 5 months, 6 days, 19 hours, 36 minutes ago

Just an FYI - the “half-naked man cavorting with an aroused farm animal” is actually a semi-famous video of some poor clown who tries to pee in a field and gets chased around by a horny donkey. The man is terrified of the donkey and ends up running with his pants around his ankles. No sexual organs (animal or human) are ever actually visible, and calling the video “pornography” is pure idiocy.

I know it’s fun to call someone a sexist pervert, but sometimes it’s also fun to not be a complete jackass. Those of you rushing to condemn the man might want to try it.
Posted by Alan - 5 months, 6 days, 11 hours, 55 minutes ago

Forgive in advance my sarcasm; however, I thought those providing a comment here were all admitted to their respective bars. Perhaps this seemingly reasonable inference has been rebutted by the manner in which all sorts of erroneous or unsupportable conclusions are being drawn from “stuff” that doesn’t remotely pass as evidence. To make matters worse, many seem to have a conclusion, one way or the other, as to what the impact should, or should not, be on the Presiding the Judge.

Perhaps those of us reading and commenting here who are practicing lawyers should take a deep breath, step back, and follow the lead of Judge Kozinski himself when he, properly so, called for an investigation into the posted material and what, if any, impact it should have on his official capacity. It may not be as much fun, but it is the way I thought we were trained to look at issues of guilt and innocence, liability and culpability.

PS: Before I see a bunch of negative posts, let me be clear that I am not trying to chill anyone’s first amendment right to speak. Nor am I suggesting I do not know the difference between our responsibilities in a court room from our citizen right to express constitutionally protected viewpoints. However, in today’s society of decreasing respect and understanding of how and why the law works the way it does, shouldn’t we, as one of the public faces of the law, practice a personal point of restraint in our public discourse - - especially when it involves something that could negatively reflect upon such a significant judicial body? Such restraint just might help hold the increasingly blurred line of distinction between mob rule and rule of law.
Posted by BlackSheep - 5 months, 5 days, 19 hours, 8 minutes ago

Associate still clings to his one article for information. Associate still blurs the line between maintaining a website and viewing/surfing to a website. Associate further blurs the line between discovering website contents by an enemy of Judge K and discovering browser history/work computer HISTORY OF GOING TO THAT SITE contents (on Judge K’s computer).

Don’t lecture me on reading comprehension. Try to differentiate these “complex” (apparently to you) terms: “website,“ “maintain,“ “view,“ “browser cache,“ “post/upload,“ “gawk at while in chambers,“ “associate’s pants around his ankles.“

And Alan: forgive my sarcasm here, but this forum was and is a diverse group (either politically, legally, or both) commenting on a Judge’s behavior and the appropriateness of that behavior AS ALLEGED.

No one here claims ot have been in Judge K’s chambers (thank God). I’m afraid your plea that those of us who are “practicing lawyers should…step back and follow the lead of Judge K” is nonsensical in the context of a comment forum.

We may be practicing lawyers, but this forum is not a courtroom. Lawyers have never practiced a “personal point of restraint in our public discourse.“ We practice restraint when personally involved in a case; we practice restraint (sometimes) when we shy away from judge-bashing (of his rulings and opinions, not behavior outside of a case). But we have never practiced restraint when it comes to arguing with our fellow legal advocates.

Congress is made up of lawyers. The Constitution was created by a bunch of bickering and oft-times belligerant lawyers. The public does not lose respect for the law because lawyers are griping amongst themselves. The public expects that. They lose respect when the legal entity that is supposed to be above the fray (the Judge), turns out to be a potential (note that I said potential) biased or weird individual.

it doesn’t matter whether what Judge K did was his own making, his son’s, etc. His cavalier attitude that basically says “porn…it’s a part of life…it’s good for the soul” doesn’t sit well with the public. Because we expect a LAWYER to say stuff like that. Not a judge.
Posted by Alan - 5 months, 5 days, 17 hours, 8 minutes ago

BlackSheep: You are being neither sarcastic nor are you apparently understanding my point. I agree lawyers engage in this behavior all the time (and clearly my comments were not directed to mere bickering behavior). It is the assumed guilt or innocence based upon nothing to which my point was obviously directed - thinly disguised “weasel” words such as “alleged” or “arguably” notwithstanding. “Nothing” because none of us would dare argue guilt or innocence based upon the contents of the article with its quoted attributions or any of the comments appended to this article. The public does not always understand or know the difference, but we do. When they see lawyers jump to conclusions of guilt or innocence (with or without the weasel words) based merely upon media reports rather then the legal record, they are more likely to assume such information is virtually the equivalent of evidence. The result is an increasing disconnect between the public’s perceptions of justice based upon media accounts and the actual judicial results. Little wonder the blowback on the entire legal system is a growing public impatience with the judicial process which they see as having increasingly less real value to them and more value towards fattening the wallets of our profession and those capable of doing the fattening.

So please, if you want to dismiss my argument because the herd is already doing it, then I am afraid you may be writing the epitaph for the very rule of law we are sworn to uphold. If you want to have a serious discussion as to whether restraint is helpful towards making the public appreciate and respect the legal process then you will have to come up with something better then the constitution was created by bickering lawyers. Their “bicker” was never about the essential importance for both the rule of law AND the need to foster public understanding and respect for it as vitally important to their personal well being.
Posted by BlackSheep - 5 months, 5 days, 14 hours, 59 minutes ago

Alan: what’s all this discourse on “guilt or innocence?‘ Judge K is not being accused of a crime. Nor is he being the defendant in a civil matter. He has admitted that he has viewed the material in question on his work computer (albeit in a roundabout way, and albeit by obfuscating that the website was not “maintained” from that computer and that he did not “upload content” to the site from that computer). He has been a forthright and open foe to any filtering devices on government computers such as his work computer, and he has actually removed such filters (being computer “savvy”) from the 9th Circuit’s computers years before the government acquiesced to his anti-filter argument.

My discussion has not been about the substance of any crime or civilly untoward act by Judge K. Mine has been along the same lines as yours but apparently flipped: you argue that “we the lawyers” in order to form a more perfect union, and foster respect for the law, should step back and act more dignified. Such behavior above and beyond what is expected from the usual guy may result in more respect for the law and the rule of law. I have only argued that “they the judges” should actually be the shining examples of such behavior—voluntarily rising above what is expected of everyman and everylawyer. And then, I argue in this case, only while at work.

I fail to see how further obfuscation by a Clintonian “let’s step back” and “let’s move on” is helpful when Judge K himself has not denied that his work computer was used to look at things that yes, my auto repair guy and my stock broker look at…yes, you and I may look at, but in my opinion NO, AT WORK, a judge should not be doing.

Simply because he should be following the “Alan Rule” of being above all that garbage because…a judge can really damage respect for the law in cases like this to a far greater length than lawyers publicly airing their theories and opinions on an open public forum.

Ask yourself two questions: first, if this were a “comment” section well-known to the public, and instead of lawyers it was a gaggle of judges making the points on this page…would that help or hinder respect for the law? When everyman read such diatribe from judges, would it be more damaging to his respect knowing it was the supposed unbiased and objective judiciary making such points? I would think so.

Second, ask yourself if we are indeed not so far apart in our thinking. We both wish that professionals undertake behavior that would foster respect for the law. While I agree that it is honorable and respectable that you believe we lawyers should stand down on this, I maintain that it is the judiciary that should stop being so controversial. In a perfect world, the lawyers would follow suit. So perhaps I am just saying “the lawyers never do that, but the judges should” while you are saying “hey, let’s ALL do that.“

Perhaps my view is a bit nihilistic toward lawyers. But perhaps my experience as a physician as well as a lawyer comes into play with my commentary. Physicians have allegedly unbiased and objective executives in the AMA, etc. who among other things have suggested and mandated some pretty lame things in the past. The “masses” of MDs remained silent about such things (e.g. the war against chiropractors decades ago) and we were thus all lumped into a suspect class of guild-protecting greedy doctors. I wish that some of the docs out on the front lines had protested in print and public that they did not agree with what our official “judges” were doing. Perhaps then people, and indeed lawyers, would have more respect for health care professionals.

So yes, I agree with you that lawyers should step back. But I only agree with you when and if the judges do the same.
Posted by Justanotherwomanlawyer - 5 months, 5 days, 11 hours, 19 minutes ago

Even brilliant people have flaws. Judge K, a conservative, strict constructionist, Reagan appointee, and former Chief Judge of the Federal Court of Claims is a brilliant, erudite, fair-minded and principled jurist- and certainly one of the most talented writers in the circuit court’s pool. I hope the investigation is swift, thorough and completely transparent - the chips will fall where they may- but they certainly will fall.
Posted by Alan - 5 months, 5 days, 8 hours, 32 minutes ago

First, I did not direct my comment at you. I responded to your comment about what I said. Second, my point has nothing to do with any public comments that may or may not have been made by the judge or the excoriation he may suffer in the public forum for views others may find repugnant. Nor are my comments related to conduct you or I may disapprove of.

My comments are directed at lawyers assuming media provided facts are evidentiary facts and, drawing conclusion one way or the other about the judge, his culpability, capacity to judge, and what, if any, consequence should befall him. Assuming the web content can be established in the appropriate legal forum along with his responsibility for its posting, then it either rises to the level of sanctionable conduct or not. If not, then this amounts to nothing more then comment about a judge’s private conduct and perhaps his public response to being “outed”. Judges are human beings and they too have private peccadilloes that may have affected there appointment or further elevation if made public before, rather then after, appointment or elevation.

PS: After 30 years of practice I am well aware that guilt or innocence is not likely at issue – however, unlike your certitude that no guilt or innocence are involved, I say not likely because, after all, for purposes of legal analysis we do not know exactly what material was displayed, its manner of generation or other factors that bear upon that question now do we? In fact, we have no evidence of him having done anything wrong at this stage at all. As such, “guilt and innocence” are a metaphor for the larger issue I was trying to address.

Now I am done. So if you feel the need to once again read something into my comment that is not there feel free to take your free shot. I feel no need to explain over and over the same point which I thought would be unremarkable to every lawyer (and judge) – even when they don’t always follow “Alan’s Rule” themselves – now that’s sarcasm Blacksheep. I wish you the best.
Posted by BlackSheep - 5 months, 4 days, 22 hours, 47 minutes ago

Actually I am heading to the Bahamas for two weeks so (gasp) my comments are done. At the risk of sounding sarcastic, Alan, thank you for the reminder about the rules of evidence. There must be some posts on here to which it applies. I don’t believe mine should be included. For my analysis has always been that regardless of the evidence, or admissibility of that evidence in a formal setting….and regardless of any action rising to “sanctionable conduct,“ it is the public perception that matters.

That perception is not based in rules of evidence or rules of sanctionable conduct. Indeed it may be warped and twisted by the spoutings of “experts” including the media (all the time) and I suppose attorneys on this board or in the public forum (yet I think you place too much power in the hands of attorneys to shape public opinion wth their own private opinions).

So regardless of the evidentiary lesson, and the platitudes of how judges are people too, and they have private lives too, etc. I will finish up by repeating my own unremarkable point—judges need to be extra careful because stuff liike this makes the legal system look bad. Just be more careful. Judge K was not only careless, but oftentimes confrontational about his right to view crazy stuff. We don’t need “impartial” judges acting as civil rights protesters. Not while at work on the bench.

But as for the media providing evidentiary “facts” I wholeheartedly agree with you. I just feel that given the media’s propensity to sensationalize, certain people need to be extra careful. Ask Jenna Bush about that—I know kids who drank a lot more than her in college yet she will forever be known as “Jenna and Tonic” and the college drunk kid. She did nothing more than “everyone else was doing” (i.e. societal norms for a college kid). So it goes with Judge K, I think. The Jennas and K’s of the world need to keep things “indoors” while under the public eye. I look forward to Judge K’s illustrated book about the 1st Amendment when and if he retires…and only when and if he does so.

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