Cyrus Sanai’s litigation strategy continues apace. He has written yet another article for a media outlet (this time the L.A. Weekly) that touts his litigation claims without disclosing his ongoing litigation.

As regular readers will recall, Sanai is embarked upon a grand legal strategy to reverse rulings in his parents’ divorce in Washington state. He has proclaimed that his litigation strategy includes seeking discipline for Alex Kozinski. On this site and others, Sanai said that revealing the contents of Judge Kozinski’s website/server was merely one element in a three-step litigation strategy related to his parents’ divorce.

One wonders if we’re now seeing Step Two.

It appears that part of Sanai’s strategy includes writing articles that advance pet arguments identical to those being made in his litigation:

• Sanai claims that there is corruption in Western state courts (including, not coincidentally, the court that decided his parents’ divorce);

• Sanai says that the Ninth Circuit has the power to issue injunctions to put a stop to that corruption (and, not coincidentally, he has asked for the federal courts to issue just such an injunction); and

• Sanai says that the Ninth Circuit has failed to issue such injunctions because of a disturbing pattern of deciding cases by unpublished disposition (which, not coincidentally, happened when he requested such an injunction).

Sanai’s dispute with Judge Kozinski began when Sanai wrote a newspaper article advancing these positions, without disclosing that the subject of his article related to Sanai’s ongoing litigation. Judge Kozinski wrote an article noting Sanai’s lack of disclosure. Kozinski also argued that Sanai had misstated the holdings of several court decisions.

Now, Sanai has written an article for the L.A. Weekly that advances these same positions. Sanai was purportedly assigned by the Weekly to cover the Ninth Circuit’s Judicial Conference in Sun Valley, Idaho. But as the article goes on, Sanai’s coverage of the conference becomes little more than window dressing for his discussion of his legal arguments — arguments which are not disclosed as central to Sanai’s litigation (which is not even mentioned).

What relevance do these arguments have to the conference? Why, Sanai says, the relevance is that they weren’t even discussed!

Nevada’s “pay for play” judiciary was well documented in the Los Angeles Times’ “Juice for Justice” series two years ago. In Arizona, the state’s own watchdog has documented instances in which elected judges use their judicial powers to favor friends or settle scores. In Washington state, the courts have been accused of appointing the employees of private litigants as special masters or judicial referees to decide cases involving those very litigants.

This is precisely what Sanai claims happened in his parents’ divorce case — which took place, not coincidentally, in Washington state.

Federal courts have the power to enjoin or enter declaratory judgments against such lower-court misbehavior. But the 9th Circuit typically disposes of these cases through unpublished decisions with no oral argument — another example of its isolation and lack of engagement. Yet this potentially hot topic somehow failed to come up in Sun Valley last week.

The topic is “hot” primarily to Sanai. With unerring precision, these two paragraphs track the legal argument Sanai has been trying to advance in court for the last several years.

And, like before, he has failed to disclose that fact.

I generally like the L.A. Weekly, but the paper got played here. This article is an advertisement for Sanai’s legal claims, and the fact that he was pursuing those claims should have been disclosed.

If Judge Kozinski weren’t effectively muzzled by the ongoing investigation, he might have pointed this out — likely in a far more entertaining and readable fashion than I have done here.

P.S. Any comments that could even arguably be read as a threat to anyone — whether professional, physical, or otherwise — will be cheerfully deleted. Offenders may be banned.

Law.com reports that Judge Alex Kozinski is taking a low profile at a judicial conference which will be covered by, among others . . . Cyrus Sanai:

Adding to the prickly situation, Beverly Hills attorney Cyrus Sanai, a Kozinski critic and the one who accessed and leaked the Kozinski Web site, obtained press credentials from the LA Weekly to cover the event.

The circuit agreed to allow Sanai to attend as a reporter, for the LA Weekly, part of an alternative newspaper chain. The circuit gave him press credentials but kept a close watch on him during Monday’s opening session.

Lawyers may attend only by invitation of the circuit but it is open to media coverage. The conference traditionally does not hold press briefings and the only opportunity to ask questions would be in the routine, public question and answer sessions at the end of each panel presentation.

Sanai said, “I’m on my best behavior. They made it clear that if I interrupt or try to ask questions I can be bodily removed.” There are plenty of U.S. Marshals, who act as security for all circuit conferences, to make good on the promise.

Sanai said the LA Weekly is not interested in a story about him, so he'll be focusing on other aspects of the conference, which concludes Thursday.

Interesting.

P.S. I have gotten tired of the threatening nature of comments surrounding this topic, so any comment that sounds like a threat — to sue someone, to investigate someone, to go after someone’s bar card, or anything else along those lines — will be summarily deleted.

UPDATE: Kozinski reportedly canceled a scheduled Q&A session. Also, according to the linked story, Kozinski ordered Sanai ejected from a welcome reception, which reporters had been told in advance they could not attend.

In connection with the Kozinski controversy, the L.A. Times quoted two legal experts, Laurie Levenson of Loyola Law School, and Stephen Gillers of the New York University Law School.

Both are quoted often in the L.A. Times as experts on legal issues. Prof. Gillers specializes in legal ethics.

Since the time that Professors Levenson and Gillers were quoted, some new information has come to light concerning the material on Judge Kozinski’s server/website.

For example, I published a letter from Marcy Tiffany, the wife of Judge Kozinski, who argued that the facts were substantially different from what the L.A. Times had reported.

Certain aspects of her letter were corroborated by information in posts of mine, showing that the material described by the L.A. Times had a humorous component that the paper did not sufficiently describe. (See here, here, here, and here.)

I decided to send Professors Levenson and Gillers links to this material, and ask them whether the new developments have changed their mind.

For her part, Prof. Levenson decided to “defer to the Third Circuit committee investigating this matter for further comment.”

Prof. Gillers gave me a full response, asking only that I publish his remarks in their entirety. (I would have anyway.)

Prof. Gillers’s remarks are very thoughtful. The highlights are as follows:

• Prof. Gillers does not believe that Judge Kozinski needs to be disciplined in connection with this controversy.

• Although he believes Judge Kozinski could have judged the case fairly, Prof. Gillers continues to believe recusal was proper.

• Prof. Gillers says that, despite the fact that the material on Judge Kozinski’s website/server was largely intended to be humorous, many will still see that material as pornographic.

• Prof. Gillers continues to believe that Judge Kozinski was seriously negligent in allowing the public to access the material. Although Prof. Gillers does not defend Mr. Sanai, Prof. Gillers rejects the view that Mr. Sanai’s actions were analogous to the burglary of a private study.

• Prof. Gillers continues to believe that Judge Kozinski is a “treasure” on the federal bench, and that opinion has not been shaken by this controversy. He believes that this incident will pass.

I encourage every reader to read Prof. Gillers’s remarks in their entirety. Visitors to the main page should click “more” to read them.

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An op-ed in this morning’s L.A. Times is titled Why Dirty Is Funny and begins like this:

When a federal appeals court judge who is presiding over an obscenity trial is himself revealed to have a “porn stash” on a personal website, as happened a couple of weeks ago, some might get indignant. Others might titter. But what if it turns out that the judge in question, Alex Kozinski of the 9th Circuit court, is a connoisseur not so much of hard-core porn as of raunchy humor? That the stash was more about laughs than about titillation? Well, in that case, it’s a completely different story.

Indeed.

So I was driving home along the 110 Freeway tonight and, all of a sudden, I heard L.A. Observed’s Kevin Roderick talking about my blog on KCRW.

He even seemed to be saying nice things.

You can listen here. I can’t recreate the feeling of surprise, though.

A publication called GayWired reviews the facts of the Kozinski debacle and finds misconduct — by the Los Angeles Times:

[L.A. Times reporter Scott] Glover’s articles are inflammatory, but they are at best misleading.

Kozinski’s self-imposed removal from the Isaacs case is a chilling result of the power of the press, and the subsequent revelations of the actual content of his site and how greatly it differs from what Glover describes is in many ways more disturbing than anything Kozinski had in his stash.

Investigative journalism has brought about many great things in the past—consider the Watergate scandal and Deep Throat, as well as the Pentagon Papers and leaked elements of the 9/11 report. But this is the second time in only a few months that the Los Angeles Times has printed a story that is either blatantly false (its theory that rapper Sean Combs was involved in the shooting of Tupac Shakur) or, in this case, irresponsibly misleading.

The Los Angeles Times editorial says that it makes sense for Kozinski to recuse himself from the obscenity case because “the website controversy has become a distraction and will undermine public trust in the verdict.” Indeed, the Isaacs trial has the potential to be of great importance in the struggle for first amendment rights: Rights, incidentally, that Kozinski has spent much of his career defending.

But the publication fails to acknowledge its own irresponsibility in bringing this “controversy” to the public eye in the first place, and doing so while using misleading descriptions and questionable timing. The LA Times may be saying “so what,” but were it not for its own reporter, Kozinski would—rightly—not be required to say anything at all on the matter.

Ouch.

At the Staten Island Advance, columnist Daniel Leddy piles on:

There is a final irony here, provided curiously enough by the Los Angeles Times itself. Shortly after it published the Kozinski story, the paper stated editorially that it really wasn’t interested in hearing any explanations from the judge. Instead, it asserted that his only response to the story should be “so what?”

This, because “scolds who argue that judges should be prevented from engaging in such private activity as gathering subjectively amusing or even appealing smut should recall that the 1st Amendment is not limited to high-minded endeavors”.

Well said.

Now all that remains is for the Los Angeles Times to explain why it chose to humiliate Kozinski in the first place.

They don’t explain such things, Mr. Leddy. Your reputation is in their hands, and that’s all there is to it.

No explanation required.

Judge Alex Kozinski has hired Mark Holscher of Kirkland & Ellis to represent him in the upcoming judicial misconduct investigation.

I have met Holscher on more than one occasion. He and I are both former law clerks for the Hon. William D. Keller, and he would drop by the chambers from time to time when I was clerking.

Holscher has an impressive reputation. He defended Wen Ho Lee, and as the Wall Street Journal Law Blog explains, that representation concluded quite successfully:

After Lee spent 278 days in solitary confinement, the charges against him were dropped, and he received a formal apology from Federal District Court Judge James Parker, who branded the government’s prosecution of the case an “abuse of power.”

Holscher also represented Randy “Duke” Cunningham. Well, you can’t win ‘em all. But then, Cunningham could’ve done much worse.

Judge Kozinski has made a great choice and I have no doubt he will be pleased with the quality of Holscher’s representation.

UPDATE: JRM notes that not all charges against Lee were dropped. He pled guilty to a felony charge — but one which was incredibly minor compared to what he was originally charged with.

And the judge did indeed apologize to him, for confining him in such unpleasant conditions — based on upon representations from the Government that the judge came to question.

Over the weekend, I received the CD of material that Cyrus Sanai says he downloaded from Judge Kozinski’s server/website. I am publishing more of that material in this post, including video material that I was previously unable to publish.

Last week, I published several images that Mr. Sanai had e-mailed me. I concentrated on publishing the material that had been mentioned in the initial L.A. Times article. Mr. Sanai was unable to e-mail me video files, and accordingly he mailed me the disc.

In my earlier post, I said:

[T]he images on Judge Kozinski’s web site are the story of the day, and I believe they are news. I believe that the only way for the public to evaluate them properly is to have the opportunity to look at them firsthand. Accordingly, I have uploaded some of these images to my site, so that interested readers can view them.

After I received the CD, I considered very carefully the question of whether to publish more material. After all, the story is now several days old. The material is unlikely to change people’s minds greatly. The people who were shocked by the previous material will be shocked by some of this material; the people who weren’t shocked by any of it are unlikely to be shocked by the material here.

However, as with the images I had received from Mr. Sanai by e-mail, I was struck by how different some of the material was from the text descriptions offered in the newspaper. As with some of the items in the previous post, there were some items — but not all — that appeared more innocuous and/or humorous in context. There is also at least one movie file that seems pornographic, with little discernable humorous value — but it’s still not illegal, or any different from hundreds of thousands of similar videos floating around the Internet.

I still think there’s no substitute for looking at the actual material. This is likely the last post I will publish about this material, but I think it helps complete the coverage, and sheds more light on the controversy.

So, after much thought and internal debate, I have decided to round out the public record with respect to the images that were specifically described by the L.A. Times, as well as the files that Mr. Sanai had specifically mentioned to me. In addition, I’m going to include some of the more innocuous material, including some of the specific items described by Ms. Tiffany in her e-mail. I’ll try to give you an overview of the nature of the material as a whole: how extensive it is, and how much it concentrates on sexual or pornographic themes.

I am tucking most of this within the extended entry. Regular readers who are offended by such material, or bored with the story, are welcome to skip to the next post.

However, there are a few things that I want everyone to see.

The original article said:

Some nonsexual material on the website might also be considered demeaning to women: There was mock mathematical equation presented as “proof that girls are evil,” and a photo of a 1950s-era mother and her daughter sharing a book titled, “Becoming a Bitch.”

Let’s take a look at the equation:

Here is the “Becoming a Bitch” image:

Different people will have different reactions, but again, there is no substitute for viewing the actual material.

Also, mentioned by nobody, but one of the funniest things I saw on the whole CD, was this notice of appeal by a particularly angry pro per (explicit language warning).

Also on the disc was the best commercial for a lawyer I have ever seen. The lawyer screams:

I cannot rip out the hearts of those who hurt you! I cannot hand you their severed heads! But I can hunt them down and settle the score! I’ll squeeze them for every dime I can! Every single dime!

View it here. I have watched it several times, and never tire of viewing it.

Now, on to the more explicit material.

As with my previous post, I’ll warn you that there are depictions of nudity and/or sexual activity. In some cases, even my descriptions are explicit. If you click on “more” you will see the explicit descriptions. If you click on a link to a file, you may see something very explicit. You are warned.

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In the L.A. Times’s original article about Judge Kozinski’s controversial material, there were two things that really grabbed your attention. Things that made it sound like there was a connection between Kozinski’s material and the obscene material that was the subject of the trial.

One was the infamous reference to a video of a “half-dressed man cavorting with a sexually aroused farm animal.” As we now know, this video was a humorous video that is on YouTube and has been shown on television.

The second disturbing thing was the paper’s statement: “There were also themes of defecation and urination, though they are not presented in a sexual context.”

I’ll grant you that if you parse the words very carefully, it says “themes” and not “depictions.” But I believe most casual readers interpreted that line as an assertion that the images depicted urination and defecation — albeit not in a sexual context.

Which sounds pretty damned weird.

The “themes of defecation and urination” line quickly spread across the Internet. Glover’s article was reprinted at the website of the local TV station KTLA, with that line included. The line was quoted by Kevin Roderick in a post at L.A. Observed, which is very popular with L.A.’s elite. The line was quoted by Eric Alterman at Media Matters.

The “defecation and urination” line was also quoted at the widely read legal blog Above the Law, as well as by Stephen Bainbridge. It made its way into Alex Kozinski’s Wikipedia entry. And I quoted it here, in my original post on the controversy.

A search for “themes of defecation and urination” coupled with the term “kozinski” yields 724 hits on Google.

Most sites that quoted the line were fairly appalled. I’d say the reaction of the person at this website would be pretty typical: “This sucker Is One Sick Puppy!” As a commenter at the widely read Defamer blog asked: “How could those NOT be presented in a sexual context?!”

I’ll tell you how.

I have now reviewed most of the material on the CD I received from Cyrus Sanai, and I can confirm what you had probably already guessed: that any references to urination or defecation on the server/website were humorous.

See, the newspaper told readers that the “themes of urination and defecation” were not presented in a sexual context. But the paper did not explain that these themes always appeared in a humorous context.

There is a tremendous difference between material that alludes to urination and defecation in a humorous context — “pee-pee/doo-doo” humor — and material that depicts urination and defecation in a non-humorous context.

Pee-pee/doo-doo humor is everywhere. By contrast, many folks would consider non-humorous depictions of urination or defecation to be perverted.

In my post that published some of the images from Kozinski’s server/website, I already presented one image that had a theme of defecation. Here it is again:

Another “image[] of defecation” is presented in this video from an Australian “funniest home videos” show. It shows a fully clothed woman showing the camera how a horse is so docile, you can even crawl through its legs. When she does, the horse defecates on her head. And the audience laughs. View that video, if you must, here.

And now for some examples of material with a theme of urination.

There is a file labeled “Women’s Bathroom” with this image:

There is a comedy skit from a television show in which men are standing at a urinal. You can’t see them below the waist. As the audience laughs, the men end up holding each other’s penises, to free up their hands to drink beer and smoke. View this silly video here.

The line about the “themes of urination and defecation,” together with the line about a “half-dressed man cavorting with a sexually aroused farm animal,” certainly made it sound like the judge was presiding over a trial about bestiality and defecation, while possessing images that appeared to relate to the same topics.

That’s the conclusion I came to in my initial post:

[I]t’s hard to see how a judge who has depictions of defecation and “cavorting” suggestive of bestiality can preside over an obscenity trial featuring defecation and bestiality.

That’s what they wanted me to think. And it worked.

I’m so ashamed. After years of training myself not to trust a thing this newspaper says, I find myself accepting what they say as true.

If even I fell for it, what about the people out there who are even less suspicious and more gullible than I am?

But my complaint here is not limited to the paper’s outrageous distortion of the “urination and defecation” material.

It’s also the way the paper has caused that line to disappear from the online version of the story, without explanation.

It used to be there. The line still appears in the KTLA version of the story linked above.

But on the L.A. Times web site’s version, this line is Down the Memory Hole. Read the story. It’s not there. There’s no line to say that it was removed, or why.

Now, I assume that this is not nefarious. Probably, the original version of the article was published on the Web, and then it was edited for the newspaper, and some editor took out the line. Then the Web version of the story was edited to conform to the print version.

Which all sounds terribly proper and understandable — until you realize that the net effect is that the newspaper has simply disappeared any evidence that they ever published that line, without saying a word to explain it.

That’s not a responsible way to handle content — especially in a story as widely disseminated as this one was. Especially with a line that had as great an effect as this one had.

I think the paper needs to explain what happened here, and revise their procedures for altering online stories, to increase transparency.

And in the future, they need to be more careful about the clear implications of their language — especially when someone’s reputation is on the line.

P.S. I plan to do a post with a more comprehensive overview of the material on the CD I received. It will likely be published tomorrow.

Edward Lazarus botches the basic facts of the Kozinski controversy:

The basic facts of what happened do not seem to be in much dispute. The website in question was maintained by Judge Kozinski’s son. It was intended to be used for sharing materials within the family and a select few others. The files on the site contained some smutty material (how much is unclear), including some uploaded by Judge Kozinski, as well as a lot of innocuous stuff. Access to the site was password-protected, but the site’s security set-up was weak. As a result, a litigant with an axe to grind was able to circumvent the password protection and gain access to the site’s files, including the file with the off-color images.

. . . .

Surely, we cannot condemn someone, or at least not much, for failing to appreciate the “hackability” of his family’s password-protected website. The early stories about the site described it as “publicly accessible” – but it would be more accurate to say that the content was publicly accessible only to someone with the talent and gumption to circumvent the password security system.

Actually, it would be far less accurate to say that. Because Kozinski’s site was not password-protected.

I wonder where Lazarus got the idea that Cyrus Sanai had somehow “hacked” a “password-protected” site. Maybe he put too much credence in the ridiculous analogies of Larry Lessig, who affirmatively said that Sanai had “hacked” Kozinski’s site, and absurdly compared Sanai’s standard web-browsing techniques to residential burglary.

Lazarus had better issue a correction, and pronto. Sanai is no stranger to litigation, and this is a howler of an error.

P.S. Far too many people trusted Lessig for the facts on this, as if he were some sort of technology wizard. This is a guy who, in a subsequent post, said:

[W]ith this blog, if you download a file I’ve linked from the blog, you can easily figure out what directory that file is located in. But you can’t (without serious hacking) see the other files in that directory, or see the directory structure. That’s because those friends who have helped me set this up have disabled that ability.

A commenter then provided a link to a URL that clearly shows Lessig’s directory structure. (It still does.) The commenter said: “Mr. Lessig, you might want to have a talk with your friends.”

Heh.

P.S. “The files on the site contained some smutty material (how much is unclear) . . .” I have been looking at some of it today, having received the CD from Mr. Sanai, after an unfortunate postage mix-up that delayed the package several days. More later.

Yeah, it’s day-old news, but I’m posting about it just in case you hadn’t seen it.

Marcy Tiffany’s e-mail to me made it into the L.A. Times yesterday:

On Monday, the judge’s wife, Marcy Tiffany, assailed The Times’ coverage of the judge’s site.

The Times articles were “riddled with half-truths, gross mis-characterizations and outright lies,” she said in a statement posted on the blog patterico.com.

“Alex is not into porn — he is into funny — and sometimes funny has a sexual character,” she wrote. “The tiny percentage of the material that was sexual in nature was all of a humorous character.”

The Times was unable to reach Tiffany, but she authenticated her e-mail to the website to the Associated Press.

Times California Editor David Lauter said in a statement that the articles were “fair and accurate” and “speak for themselves.”

The stories “raised important issues on a matter of significant public concern,” Lauter wrote. “The judge was presented with the facts once the matter became newsworthy and was given a full opportunity to respond. We took his responses into account before publication and included what he said in our stories.”

I realized tonight that I hadn’t posted about it — and some of you count on me to read this paper, so you don’t have to.

They’re also giving a different description of the donkey video: “There was also a video of an encounter between a half-dressed man and a sexually aroused farm animal.” No more “cavorting.”

Good.

UPDATE: Actually, not good. A commenter points out that “an encounter” is hardly more descriptive of the actual video. If you haven’t seen the video, it still leaves open the possibility that the video depicts bestiality.

Why can’t they just say that the man is attempting to get away from the sexually aroused animal??

Susan Estrich has a long opinion piece about the Kozinski controversy, and comes out firmly on the judge’s side. She criticizes the L.A. Times for misdescribing the material on the judge’s website/server, and for omitting the role of Cyrus Sanai in tipping the newspaper.

Judge Kozinski’s “sin,” in the eyes of the man who attacked him, was not his taste in humor but his willingness to speak out publicly about legal issues, in this case, the lawsuit brought by Mr. Sanai, and the abuse of process it involved.

That willingness is precisely what makes Judge Kozinski a unique treasure in the federal judiciary. Instead of encouraging others to do the same, which is what the so-called liberal media should be doing it, the sloppy if not vicious reporting of the Los Angeles Times is sure to encourage just the opposite. The first amendment is not well served.

Meanwhile, an article in ComputerWorld asks: Federal judge a victim of privacy breach or poor judgment? I am quoted on the second page.

Meanwhile, The Onion asks people on the street:

A Los Angeles pornography trial was suspended when it came to light that the judge had bestiality-tinged photos on his personal website. What do you think?”

The best answer comes from Katla Braidwood, Financial Adviser: “Well, good luck finding a judge that doesn’t run a bestiality site.”

On a serious note, where in the world did The Onion get the idea that Judge Kozinski had “bestiality-tinged photos” on his web site? Wasn’t it just yesterday that Scott Glover was telling us that his description of the material on Judge Kozinski’s server/website wasn’t misleading? I believe it was.

So how did The Onion (and the San Francisco Chronicle) get misled??

Finally, Seth Finkelstein, who has done much good work on this controversy at his blog, has this op-ed in the Guardian.

UPDATE: As long as we’re collecting links, here’s another one, from yesterday’s New York Sun.

By the way, my CD from Cyrus Sanai hasn’t arrived yet. He’s putting another one in the mail, which, we both agree, undoubtedly means I’ll receive the first one tomorrow.

UPDATE x2: See this post.