Patterico's Pontifications


Daily Journal Reports on Dismissal of Cyrus Sanai’s Complaints Against Kozinski and Others. The L.A. Times . . . Somehow Misses the Story. Fancy That.

Filed under: Dog Trainer,Kozinski — Patterico @ 6:17 pm

A reader passes along an article from the Daily Journal, which reports on the Ninth Circuit’s dismissal of certain ethics complaints by Cyrus Sanai against numerous judges, including Alex Kozinski. (Attentive readers will note that I first reported on this before Thanksgiving. Patterico: beating the Daily Journal by almost a week!)

The reader notes that, for all the articles that the L.A. Times has done about Kozinski, it has run absolutely zilch on this order. Indeed, a search of their archives reveals that the last mention of Kozinski was on November 14, on an unrelated matter. (Patterico: reporting the news that the L.A. Times refuses to run!)

The Daily Journal article begins:

The 9th U.S. Circuit Court of Appeals has dismissed a lengthy misconduct complaint against Chief Judge Alex Kozinski and numerous other jurists filed by Cyrus M. Sanai, a Beverly Hills attorney.

The article notes the investigation launched over the sexually explicit material on Judge Kozinski’s web site, and continues:

While that investigation was under way, Sanai filed a complaint against Kozinski and a dozen other circuit judges and six district judges alleging assorted acts of misconduct related to their handling of Sanai’s own civil cases, appeals and earlier misconduct matters.

That complaint was the subject of a Nov. 25 order by Circuit Judge Stephen R. Reinhardt, in which he found Sanai’s claims “frivolous,” “not supported by any evidence” or properly dismissed by earlier orders.

In sum, Reinhardt concluded, Sanai filed baseless allegations “and appears to have described his conduct as part of a litigation strategy.” Reinhardt cited that phrase in a 2008 posting by Sanai on a legal affairs blog called Patterico’s Pontifications, run by a deputy district attorney in Long Beach, John Patrick Frey.

Frey also quoted from a Sanai comment to another blog: “Once Kozinski inserted himself into my litigation inappropriately [by writing the op-ed column], it’s my duty and right to undo the negative consequences and turn the situation to my litigation advantage.”

Frey declined to comment on the matter Monday except to note it is unusual for his blog to be mentioned in an official circuit order.

Kozinski, through his attorney, declined to comment.

(Just so it’s clear, I didn’t so much “note” that it was unusual as “agree with the reporter” that it was unusual. He brought it up.)

I spoke to the reporter, John Roemer, just before lunch yesterday (nice guy) and indeed declined to comment on Cyrus Sanai’s argument that the Ninth Circuit had no business meddling in this set of complaints. The reader can make his own judgment.

Well, I guess this answers the question of who that mystery “complainant” was in Reinhardt’s order.

I had a feeling it was Cyrus Sanai! Don’t ask me how I knew . . . it just felt right.


Kozinski Wins on Disabling Federal Court Filters; Scott Glover Worries Instead About Some E-Mail Gag List

Filed under: Dog Trainer,General,Kozinski — Patterico @ 6:44 am

Amazing. Scott Glover of the L.A. Times authors a story about a 20-page decision (.pdf) from the Judicial Council of the Third Circuit Court of Appeals, relating to significant issues of censorship and national security — and Glover focuses the entire story on an inconsequential footnote about an e-mail gag list. Why? Because Glover wrote a story about the gag list. So that’s what he cares about.

The opinion dismisses a complaint against Chief Judge Alex Kozinski for allegedly disabling electronic sensors (in effect content filters) from the computers for three federal circuit courts of appeals. The topic of the opinion was the subject of great controversy when the events in question occurred, with accusations and defenses appearing in the pages of the Wall Street Journal and the New York Times. The controversy pitted Kozinski’s libertarian views (that the employees of the federal courts must be trusted to access any sort of material without censorship) against security concerns raised by the former Director of the Administrative Office of the U.S. Courts (maintaining that Judge Kozinski’s actions created a security breach that potentially opened our country’s most guarded secrets to the scrutiny of any talented hacker with an internet connection). The opinion addresses the contentions at length and determines that the complaint must be dismissed because it was previously litigated and decided years ago:

The Complaint seeks to reopen a matter addressed and completely resolved in 2001 by the Judicial conference of the United States. No further review is warranted. Reopening this matter would disregard the finality of the resolution in 2001, and any new inquiry would not only be improper but would also be prejudiced by the unexplained and unreasonable delay in the filing of the Complaint. Accordingly, we will dismiss the Complaint.

Oh — and also, the Judicial Council drops a footnote — the last of 10 footnotes, in fact — mentioning Judge Kozinski’s e-mail gag list which he used to send “ribald jokes” over a few years. The opinion notes that Kozinski has discontinued the list and apologized — which, the Judicial Council says, is enough to conclude the matter. Reading the brief footnote, you can easily picture the judges shrugging their shoulders as they are forced to discuss this trivial issue. Yawn.

And yet . . . what does reporter Scott Glover see as the big story here?

The apology for the gag list.

I kid you not.

The story is titled “Judge Alex Kozinski apologizes for distributing crude jokes.” The deck headline reads: “A panel concludes its investigation of the 9th Circuit’s chief judge after he says he has stopped e-mailing his ‘gag list.’ No action is taken against him.” And the opening lines state:

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, has apologized for having maintained an e-mail “gag list” in which he distributed crude jokes and other humorous material, according to an opinion made public Tuesday.

Nowhere does Glover’s story mention that this momentous issue was decided via a footnote. Which is more than it deserved.

Paragraphs 8 and 9 of Glover’s 10-paragraph story mention the electronic filters issue, in passing (“The Judicial Council dismissed that complaint too . . .”). But what’s a story about disabling electronic filters to three federal courts of appeals, when there’s a footnote about an e-mail gag list to write about?!?!?!

Naturally, Glover considers the gag list story to be important, because he thinks he is the guy who broke that “story.” The fact that it is a stupid non-story does not trump that pride of ownership.

Actually, as I demonstrated in this December 2008 post, Glover didn’t even break the story; the Wall Street Journal Law Blog had already published about the gag list several months earlier. Nor was the story significant; in my post, I gave several specific examples of the silly jokes sent on the gag list. As I said in my post: “So the L.A. Times has published an old story, about humorous jokes sent to consenting adults. Again, how is this a story?”

Answer: it wasn’t. And a Judicial Council’s minor footnote addressing it doesn’t change that fact.

P.S. I just found Glover’s article for his student newspaper from July 21, 1969:

Yesterday astronaut Neil Armstrong was overheard cracking inappropriate jokes while eating cornflakes and Tang. Several shocked observers reported an inappropriate analogy from the normally reserved astronaut involving rockets and craters. Inquiries from the Los Angeles Times reveal that an investigation may or may not occur.

Also, Armstrong became the first man to walk on the moon yesterday.

He’s always had a nose for news!


Podcast of Kozinski/Lat Talk

Filed under: General,Kozinski,Law — Patterico @ 11:45 pm

At The Jury Talks Back, Justin Levine recently posted about a local Federalist Society lunch in which Judge Kozinski and David Lat discussed appellate advocacy and other matters. I would love to have gone, but it’s tough to make those downtown lunches from Compton — especially when you never know when you might be in trial. Anyway, there’s now a podcast available, here. I haven’t listened to it, but guess what’s going on my iPod right now?

P.S. Also available at the link is a podcast of a Gun Policy Debate after Heller, with Eugene Volokh and others, moderated by Kozinski. Alas, I’m not terribly interested in this one. It sounds great, but a friend of mine attended, and said it was not particularly interesting, because they had agreed not to discuss Heller (the title of the program notwithstanding). Accordingly it became (according to my friend) a rather formulaic “Guns are good!” “No, guns are bad!” debate.

It’s hard for me to imagine anything with Eugene Volokh being dull, so feel free to check it out, and tell me if your opinion is different from that of my friend. But don’t expect a Heller discussion.


L.A. Times Publishes Article About Kozinski’s Joke E-Mail List

Filed under: Blogging Matters,Crime,Dog Trainer,General,Kozinski — Patterico @ 2:33 am

At the L.A. Times, Scott Glover today publishes a story titled Federal judge e-mailed jokes to ‘gag list’:

When new members were welcomed to an e-mail group called the Easy Rider Gag List, they were warned that they would soon be receiving a steady diet of tasteless humor.

The warning came from the Easy Rider himself: Alex Kozinski, one of the highest ranking and most intellectually respected federal judges.

On the gag list, Kozinski periodically distributed jokes to a group of friends and associates, including his law clerks, colleagues on the federal bench, prominent attorneys and journalists. The jokes he sent ranged from silly to politically oriented to raunchy.

The article strikes me as a stretch. Everyone knows people who send around silly and tasteless jokes. And, by now, everyone who followed the previous controversy knows that Kozinski has a sense of humor that can, at times, veer into the silly and tasteless.

In light of that known fact, what is the news value of this story?

But if we’re determined to have some kind of public discussion about this judge’s e-mailed jokes, then — as with the material on Judge Kozinski’s server/website, which Glover described in a way that removed much of the humorous context — I think it’s best for the general public to see the jokes themselves.


The article says: “The Times was given 13 jokes by three sources that were circulated on the gag list between 2003 and 2008.” We are not told who the sources are, or whether the jokes are representative, but we are given a couple of examples of the types of jokes that were sent around:

One joke sent last spring poked fun at the Taliban, stating, “You may be a Taliban if . . .” any of the following 12 statements are true. Among the statements: “You own a $3,000 machine gun and $5,000 rocket launcher, but you can’t afford shoes” and “You wipe your butt with your bare left hand, but consider bacon ‘unclean.’ “

Well, on this blog we’re not constrained by space limitations, so let’s get the whole list out there. This is from Neal Boortz’s site:


1. You refine heroin for a living, but you have a moral objection to beer.

2. You own a $3,000 machine gun and $5,000 rocket launcher, but you can’t afford shoes.

3. You have more wives than teeth.

4. You wipe your butt with your bare left hand, but consider bacon “unclean.”

5. You think vests come in two styles: bullet-proof and suicide.

6. You can’t think of anyone you HAVEN’T declared Jihad against.

7. You consider television dangerous, but routinely carry explosives in your clothing.

8. You were amazed to discover that cell phones have uses other than setting off roadside bombs.

9. You’ve ever uttered the phrase, “I love what you’ve done with your cave.”

10. You have nothing against women and think every man should own at least one.

11. You bathe at least monthly whether necessary or not.

12. You’ve ever had a crush on your neighbor’s goat.

I have little doubt that plenty of people would find at least some of that to be humorous.


The L.A. Times article continues:

Other jokes, labeled “P&T” in the subject heading to indicate they were “puerile and tasteless,” were cruder and more sexually explicit and used language that defies quotation in a general circulation newspaper.

The most graphic joke was set up as a three-page letter ostensibly written by a man to his estranged wife. The man sarcastically tells his wife that he still loves and misses her while at the same time detailing his recent sexual escapades with a young student, a single mother and his wife’s younger sister. The single mom, the man says, acts like “a real woman . . . [who is] not hung up about God and her career and whether the kids can hear us.”

That rather bloodless description doesn’t really convey the tone of the letter, which you can read in its entirety here. The title is “How To Get Your Ex Back” and begins with the following:

Dear JRW,

I know the counselor said we shouldn’t contact each other during our “cooling off” period, but I couldn’t wait anymore. The day you left, I swore I’d never talk to you again. But that was just the wounded little boy in me talking. Still, I never wanted to be the first one to make contact. In my fantasies, it was always you who would come crawling back to me. I guess my pride needed that.

But now I see that my pride’s cost me a lot of things. I’m tired of pretending I don’t miss you. I don’t care about looking bad anymore. I don’t care who makes the first move as long as one of us does. Maybe it’s time we let our hearts speak as loudly as our hurt. And this is what my heart says… “There’s no one like you, Terri.” I look for you in the eyes and breasts of every woman I see, but they’re not you. They’re not even close.

Two weeks ago, I met this girl at the Rainbow Room and brought her home with me. I don’t say this to hurt you, but just to illustrate the depth of my desperation. She was young, Terri, maybe 19, with one of those perfect bodies that only youth and maybe a childhood spent ice skating can give you. I mean, just a perfect body. Tits you wouldn’t believe and an ass like a tortoise shell. Every man’s dream right? But as I sat on the couch being blown by this coed, I thought, look at the stuff we’ve made important in our lives.

It’s all so surface. What does a perfect body mean? Does it make her better in bed? Well, in this case, yes. But you see what I’m getting at. Does it make her a better person? Does she have a better heart than my moderately attractive Terri? I doubt it. And I’d never really thought of that before. I don’t know, maybe I’m just growing up a little. Later, after I’d tossed her about a quart of throat yogurt, I found myself thinking, “Why do I feel so drained and empty?” It wasn’t just her flawless technique or her slutty, shameless hunger, but something else. Some niggling feeling of loss. Why did it feel so incomplete? And then it hit me. It didn’t feel the same because you weren’t there, Terri, to watch. Do you know what I mean? Nothing feels the same without you, baby.

And it goes on like that. Feel free to read it all at the link. If this is the most graphic joke Kozinski ever sent around, then The Times doesn’t have much.

To some, jokes like this are funny. To others, they’re annoying and tasteless. But the idea that someone might circulate a joke like that to friends of his, who are willing recipients of the e-mails . . . it’s just not something that merits coverage in a newspaper, it seems to me. [See the UPDATE below for evidence that the e-mails were sent only to willing recipients.]


Worse, this isn’t even really news. The Wall Street Journal Law Blog reported on the e-mail gag list back in June of this year, in a post that gave a couple more examples of the types of jokes Kozinski sent around to friends:

One joke tells of the golfer who killed his wife by hitting a tee shot that strikes her in the temple. Days later, a coroner calls and tells the golfer that the coroner also discovered a bruise on the wife’s hip. “Do you know anything about this?” the coroner asks. “Yes,” the golfer says, “that would have been my mulligan.”

The Kozinski jokes border on R-rated at times, like the one about the woman who confesses to her priest that “my boyfriend made mad, passionate love to me seven times.” The priest tells the woman to squeeze 7 lemons into a glass and drink it down. “Will this cleanse me of my sins?” she asks. “No,” the priest says, “but it will wipe that grin off your face.”

The jokes suggest that Kozinsk[i] is both ribald and unusually free spirited for someone of his stature. Sure, we all have uncles who send around this kind of stuff, but the chief judge of the 9th Circuit? Maybe that’s inappropriate behavior, or maybe it’s refreshingly candid behavior from the normally cloaked federal judiciary.


From the L.A. Times article, it appears that most of the people on the list hewed closer to the latter view. Hardly anyone who received the jokes appears to have been offended, although you get the feeling that one or two people sort of rolled their eyes and started deleting the e-mails without even reading them. The article notes that each e-mail “contained warnings about its potentially offensive content,” and according to Kozinski’s attorney, “[a]nyone who asked to be taken off the list was removed immediately.”

Certainly Kozinski has developed a reputation as someone different from your average judge. I have said that I felt it was legitimate for The Times to report that the Chief Judge of the 9th Circuit was (even unwittingly) putting sexually explicit material on a server that was accessible by the public. Kozinski has been accused of other conduct that merits news coverage, including the recent resurrection of an old accusation that he disabled security software for the computer system serving three federal circuit courts.

But writing a newspaper story about his private joke e-mail list? Come on. Let us know when you have a real story to report.

UPDATE: Proof that the list was consensual comes in this post, which reproduces the message Kozinski would send as the first message to anyone on the list:

From: The Easy Rider

I have added your name to the prestigious EZ RIDER GAG LIST. You are now a member of an elite corps of trend-setters and opinion-makers, selected on the basis of our rigorous criteria (mainly the willingness to receive large quantities of puerile and tasteless humor).

You should start getting current distributions in the next couple of days. …

You will note that some of the gags are marked “(P&T)” at the end of the “Subject” line. This stands for Puerile and Tasteless – the kind of humor Mrs. Garibaldi used to pull your ears for when she found it scribbled in your third-grade notebook. Feel free to pass on the gags I send you, but if they are marked “(P&T)” please PULL MY NAME OFF; I do not want to be sending P&T humor to non-consenting parties.

Hope you enjoy.

Ciao. AK

Emphasis is mine. Clearly, Kozinski did not want to send this humor to anyone who didn’t consent. So the L.A. Times has published an old story, about humorous jokes sent to consenting adults. Again, how is this a story?

UPDATE x2: An anonymous correspondent sends along another example of a link that Kozinski sent around to the gag list, here.


Federal Judge Wrote That Software Disabled by Kozinski Was “Integral Part” of Court’s “Security Apparatus”

Filed under: General,Kozinski — Patterico @ 12:07 pm

In 2002, a federal judge chairing a committee on information technology wrote that software disabled by Judge Alex Kozinski was an “integral part” of the “security apparatus” of the federal courts’ data communication network, and that its disabling caused considerable “security risks” to court computer security.

For those of you who are interested the recent ethics complaint against Judge Kozinski, accusing him of disabling court security software in 2001, Howard Bashman has posted the complaint online here. The complaint was filed by L. Ralph Mecham, former head of the Administrative Office of the U.S. Courts.

In connection with that complaint, Cyrus Sanai passes along to me a letter that he says was sent to him by Mecham. The letter is dated May 10, 2002. It is from the late Edwin Nelson, a federal judge who was the chair of a 14-judge committee called the “Committee on Information Technology.” The letter is addressed to U.S. Rep. Howard Coble, then the chairman of a House Subcommittee on Courts, the Internet, and Intellectual Property.

The most interesting part of the letter is at page 4, regarding Kozinski’s disabling of the intrusion detection system for the judicial branch’s Data Communications Network (DCN):

Note that Judge Nelson says the disabling was authorized by the “Executive Committee of the Ninth Circuit Judicial Council.” Exactly who was on that Executive Committee is not clear.

I’m not aware of this letter having been published before.


New Ethics Complaint Filed Against Kozinski

Filed under: General,Kozinski — Patterico @ 7:06 pm

But it relates to an old allegation:

A retired federal court executive alleged Alex Kozinski, chief judge of the U.S. Court of Appeals in San Francisco, broke into a judicial computer security system to restore access to pornographic Web sites, according to a filed complaint.

Ralph Mecham, who headed the Administrative Office of the U.S. Courts in Washington for 21 years until retiring in 2006, made the allegations in a complaint yesterday to the U.S. Court of Appeals in Philadelphia. . . . Mecham said U.S. Supreme Court Chief Justice William Rehnquist became “enraged” because a committee of federal judges disobeyed his recommendation to discipline Kozinski after he disabled computer filter software meant to block sexually explicit Web sites in 2001, according to the complaint.

“Tell Kozinski to watch pornography at home and not in his own court,” Rehnquist told Mecham, according to his complaint. Mecham said he wants Kozinski to resign or be impeached by Congress because he allegedly destroyed government property and bragged about it.

I have been fascinated by this complaint since June, when I first read Mecham’s letter regarding the incident. To me, the issue comes down to this: was Kozinski merely disabling a filtering system? or the court’s security system?

If he was merely disabling a filter that prevented judges and court employees from downloading porn, as Kozinski has claimed, then he’s a libertarian hero. Judges and their employees need to be able to access all kinds of material to do their jobs.

Analogously, my office flirted with blocking MySpace access, but ultimately reversed its decision — and that’s a good thing. I don’t screw around on MySpace for fun at work, but I have used MySpace to pull pictures of gang member defendants throwing gang signs — thus strengthening gang allegations in shooting cases.

If court employees are abusing their access to porn or other inappropriate materials, that’s a problem and should be dealt with — but filtering is not the answer.

If, by contrast, Kozinski was disabling the security firewall, as Mecham claims, then Kozinski’s actions were incredibly reckless and merit discipline. Courts deal with some of the most sensitive national security secrets that the government possesses. It is paramount to have unbreachable security for court computers.

I’ve never been able to figure out which is true. Did he disable a filtering system, or the security firewall?

I know it’s an old allegation, but I still hope it gets investigated and resolved. It’s that important.


Sanai’s Litigation Strategy Continues

Filed under: General,Kozinski — Patterico @ 10:41 am

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.


Cyrus Sanai to Cover Judicial Conference Involving Alex Kozinski

Filed under: General,Judiciary,Kozinski — Patterico @ 8:42 pm 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.


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.


Ethics Expert Stephen Gillers: Judge Kozinski Should Not Be Disciplined

Filed under: Dog Trainer,General,Judiciary,Kozinski — Patterico @ 6:32 am

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.



Too Bad This Perspective Wasn’t Fully Shared in the Original Story . . .

Filed under: Dog Trainer,Judiciary,Kozinski — Patterico @ 11:37 am

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.


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