A federal judge, Alex Kozinski, Presiding Judge of the 9th US Circuit Court of Appeals, recently created a furor among legal ethics lawyers. The Los Angeles Times reported the judge admitted that he maintained a sexually explicit website with both sexually artistic photos and apparently, what some people would deem to be, pornographic photos including “images of masturbation, public sex, contortionist sex, defecation and urination”. The judge stated that the website was not for public use and required an access name to view the sexually explicit photographic material.
The ethics problem is that the judge is sitting on a case where prosecutors allege that a criminal defendant, who is a film producer, distributed criminally obscene videos involving extreme fetishes like bestiality and defecation.
According to the National Law Journal, Stephen Gillers, a professor of legal ethics at New York University School of Law, said that Kozinski should recuse himself because the existence of the sexual images has been made public. The National Law Journal quoted Gillers as stating, “Given the present publicity, the public might reasonably question Kozinski’s ability to handle an obscenity prosecution impartially,” he said.
I find it interesting that Professor Gillers said that Justice Kozinski should recuse himself “since [because] the images have been made public”. The question should be whether his hobby will influence his performance on the bench even more than any possible appearance of impropriety. I do not believe that the appearance of impropriety alone should be enough to justify a recusal, particularly in light of the fact that double jeopardy becomes an issue if the judge should recuse himself.
If his interest in maintaining the website could be sufficient to affect any aspect of the trial, the judge should recuse himself regardless of double jeopardy. The correct outcome would be to admonish the judge for his failure to recuse himself, not to punish the defendant.
What is disturbing is the fact that the judge was not forthcoming with the fact that he had a private or even semiprivate interest which could affect his impartiality or create that appearance. At the very least, the judge could have recused himself without disclosing his reasons. The fact that he did not recuse himself creates the appearance that he did in fact have a personal interest in the outcome. It is not fair either to prosecutors, the public, criminal defense lawyers, or defendants when a judge fails to recuse himself or herself when private and even embarrassing issues create a conflict of interest. Everyone loses.
Philip L. Franckel, Esq.
Criminal Defense Lawyer
1888DRUGCRIMES.COM
Tags: criminally obscene videos, pornography arrest, prosecuting pornography, prosecution of pornographic material, prosecution of pornography