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9th Circuit's Kozinski Admonished but Not Disciplined for Online Pornography
The Legal Intelligencer
July 06, 2009
The judicial misconduct complaint against 9th Circuit Chief Judge Alex Kozinski over the sexually explicit material found on his family Web site has been resolved with a public admonishment but no discipline imposed on the judge.
The 11-judge judicial council of the 3rd U.S. Circuit Court of Appeals, which was specially assigned to hear the case, issued a unanimous 41-page opinion in In re Complaint of Judicial Misconduct that said Kozinski had cured the problem himself by removing the explicit material and destroying it.
"The judge's acknowledgment of responsibility combined with the corrective actions he has already completed or has committed to pursue and his apology, along with our admonishment, made public in this opinion, properly remedy the problems raised by the complaint," 3rd Circuit Chief Judge Anthony J. Scirica wrote.
Scirica said Kozinski had "explained and admitted his error; apologized for it, recognizing its impact on the judiciary; and committed to changing his conduct to avoid any recurrence of the error."
The investigation was sparked by reports in The Los Angeles Times that said Kozinski kept pornographic images on a Web site that was accessible to the public, including "a picture 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."
But Kozinski later said that he never intended the images to be public, and the judge's son told The New York Times that it was his fault the site was not password-protected.
In a statement issued Thursday, Kozinski said: "I am pleased that today's unanimous decision reaffirms what I have said all along about my private files: They were kept on a private server and were not intended to be shared publicly."
Kozinski himself had called for the investigation, but the judicial council of the San Francisco-based 9th Circuit asked that the matter be transferred to the judicial council of a different circuit because of "exceptional circumstances."
That same day, U.S. Supreme Court Chief Justice John G. Roberts Jr. assigned the investigation to the 3rd Circuit's judicial council, led by Scirica. Soon after, Scirica announced that he had appointed a special committee that includes himself; 3rd Circuit Judges Marjorie O. Rendell and Walter K. Stapleton; Chief U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania; and Chief U.S. District Judge Garrett E. Brown of the District of New Jersey.
The special committee was assisted in its investigation by two Philadelphia lawyers -- Robert C. Heim of Dechert and J. Gordon Cooney Jr. of Morgan Lewis & Bockius. Kozinski, who testified for three hours before the committee, was represented by attorney Mark C. Holscher of the Los Angeles office of Kirkland & Ellis.
Holscher submitted letters from five leading experts on judicial ethics, including law professors Stephen Gillers of New York University and Monroe H. Freedman of Hofstra, who opined that Kozinski had broken no laws and hadn't violated any rules of judicial conduct.
