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Revolting images and double jeopardy issues swirl around Judge Kozinski’s mistried obscenity case

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Photo from website of U.S. District Court (W.D. Mi.).

The Ira Isaacs obscenity prosecution is the latest federal case — other than my own federal cases — that I have reviewed on PACER. The information I found there provides factual information — some linked below — concerning Judge Alex Kozinski’s recusal and mistrial orders from June 13, and about the prosecutors’ allegations of the beyond-disgusting contents of the alleged obscenity involved in the prosecution.

In July 2007, a federal grand jury in Los Angeles rubber-stamped, I mean returned an indictment against Ira Isaacs for alleged importation of obscenity for sale or distribution, transportation of obscene material, and improper record keeping to show that all actors in sexually explicit videos were over eighteen years old at the time of production.

Trial commenced on June 9, 2008, with jury selection, which was completed on June 10, 1008. During the parties’ opening statements on June 11, the media reported that presiding trial judge Alex Kozinski (also recently elevated to the chief judgeship of the U.S. Court of Appeals for the Ninth Circuit) had sexually explicit images at his alex.kozinski.com Internet site. Blogger Eugene Volokh — a friend and former law clerk of Judge Kozinkski — has an admittedly biased overview about those images here.

Judge Kozinski adjourned trial proceedings on June 11 to determine how he would handle his presiding over an obscenity trial when his own sexual image scandal broke out during opening statements. Two days later, on June 13, 2008 — apparently sua sponte, although he said he would entertain any motions by the parties to remove him from the case (Judge Kozinski apparently was a good pick for the defense, for his reportedly strong stance on many First Amendment rights) — Judge Kozinski issued an order stating: "In light of the public controversy surrounding my involvement in this case, I have concluded that there is a manifest necessity to declare a mistrial. I recuse myself from further participation in the case and will ask the chief judge of the district court to reassign it to another judge." On the same date, the Central District of California’s chief judge issued an order stating: "A mistrial having been declared by the transferee judge, and the transferee judge having recused himself, it is ordered that in accordance with the usual transfer procedures of this Court, this case is returned to the calendar of Judge George H. King for all further proceedings."

The final docket entry as of the start of business on June 16, 2006 is an order from newly-assigned Judge George King, setting the trial for June 30, 2008.  

On some lawyer listservs has been a discussion about why Judge Kozinski’s recusal necessitated a mistrial, rather than having a new judge resume the trial midstream. One or more listserv commenters suggested that the governing procedural rules allow the replacement of the judge without a mistrial — certainly, any new judge would be able to come up to speed with the trial proceedings by reading transcripts from the three days of trial proceedings — and that avoiding a mistrial would have avoided the possibility of a dismissal on double jeopardy grounds. By now, the mistrial cannot be reversed. The jury presumably has been excused and thus released from any order not to read or listen to news about the case; then again, which potential new jury members will not have heard of this case that has by now received so much press?

In the Ninth Circuit, at least, "[j]eopardy attaches after the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 57 L. Ed. 2d 24, 98 S. Ct. 2156 (1978); United States v. Jaramillo, 745 F.2d 1245, 1247 (9th Cir. 1984), cert. denied, 471 U.S. 1066, (1985). After jeopardy attaches, the court’s declaration of a mistrial – over the defendant’s objection does not bar retrial where the mistrial was declared because of ‘manifest necessity.’ Thomas v. Municipal Court of Antelope Valley J.D., 878 F.2d 285, 287 (9th Cir. 1989) (citing Washington, 434 U.S. at 505)." U.S. v. Sammaripa, 55 F.3d 433, 434 (9th Cir. 1995).

Here, one argument for "manifest necessity" might be that a new judge would need time to get up to speed with the trial, and that such delay in doing so would consequently necessitate starting anew rather than having a group of antsy jurors waiting for Godot.

No matter which jury Mr. Isaacs gets, he will have a likely monumental battle for the prosecuted material not to be found obscene. His own lawyer, Roger Diamond, said in opening that the prosecuted films are "pretty revolting." As much as I oppose Mr. Isaacs’ prosecution and all obscenity prosecutions on First Amendment grounds, my stomach contents still threatened to violently erupt as I read the prosecutor’s proffered description of the films. (WARNING: The prosecutor’s description of the films — found near the end of this document — is beyond disgusting to include the deeply upsetting,) There is no reason to expect that Mr. Isaacs’ jurors will react more mildly than I, particularly after they see the actual films, unless the prosecutor’s description of the material is an exaggeration.

For those interested, I have uploaded the following key court filings in this Isaacs prosecution: The indictment; case docket; defendant’s motion to dismiss; defendant’s motion to require translation of the films to English; joint pretrial memorandum containing the parties’ motions and legal memoranda; the prosecutor’s trial memorandum; defendant’s proposed jury voir dire; prosecutor’s proposed jury questionnaire (WARNING: The prosecutor’s description of the films — found near the end of the prosecutor’s proposed jury questionnaire — is beyond disgusting to include the deeply upsetting); prosecutor’s proposed jury voir dire; defendant’s proposed jury instructions disputed by the prosecutor; the prosecution’s exhibit list; joint verdict sheet; and Judge Kozinski’s recusal order.

As much as I am revolted by the descriptions of the films being prosecuted in Mr. Isaacs case, on First Amendment grounds I wish him victory in his case. Jon Katz.

ADDENDUM: A fellow blogger suggested I give my view of whether Judge Kozinski’s decision to declare a mistrial was truly manifest necessity or personal choice/convenience.

The Ninth Circuit caselaw on manifest necessity in the context of mistrials and double jeopardy rights — see, e.g., U.S. v. Sammaripa, 55 F.3d 433, 434 (9th Cir. 1995). — speaks about the timeline when the necessity manifested itself, and that manifest necessity will not overcome dismissal for a double jeopardy violation if a mistrial could have been declared before jeopardy attached. Here, any necessity arguably manifested itself before Judge Kozinski got assigned to the trial, as discussed below.

Eugene Volokh does a good job putting Judge Kozinski’s alleged involvement with sexually explicit images into perspective. (Also, some people have already been discussing Judge Kozinski’s possible copyright infringement exposure for the uploading of some MP3’s to his Internet site.) Being an appellate judge, it probably is more understandable why Judge Kozinski decided to recuse himself and to return to appellate work. Were he a full-time trial judge, it would have been harder for the judge to determine which cases to recuse himself from and which not to recuse himself from.

As the defendant’s lawyer, armed with the information I currently have, I probably would not have wanted his recusal, and certainly would have filed an objection to the mistrial, to preserve double jeopardy arguments.

As much as I dislike self-censorship, I suggest that a mess of the current magnitude should have been reasonably foreseeable by Judge Kozinski over his uploading sexually explicit images to the Internet. Of all trials to take as a supplement to his appellate judging, it is surprising that Judge Kozinski would have taken this one. Once he accepted this case, had he stayed in the case after the current scandal over his uploaded sexual images, the jury might have needed to be sequestered in a hotel to be shielded from the heavy case publicity. I assume that the jury was not told of the possible need for such sequestration, and that sequestration could have disrupted focused and fair (fair to whom, though?) jury proceedings significantly. I do not take issue with the judge’s recusal; I do question his decision to accept the case in the first place rather than to stick with appellate judging.

Because the mistrial could have been avoided had Judge Kozinski stayed out of the trial courtroom in the first place, arguably he declared manifest necessity too late.