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In re Complaint of Judicial Misconduct

June 5, 2009

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT


ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351 TRANSFERRED FROM JUDICIAL COUNCIL OF THE NINTH CIRCUIT (J.C. No. 09-08-90035)

The opinion of the court was delivered by: Scirica, Chief Judge.

MEMORANDUM OPINION

Present: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, AMBROSE, BROWN, BARTLE, KANE, and SLEET, Members of the Judicial Council.

A Complaint of judicial misconduct was identified under 28 U.S.C. § 351(b) against Chief Judge Alex Kozinski*fn1 of the United States Court of Appeals for the Ninth Circuit. The identified Complaint was transferred by the Chief Justice of the United States to the Judicial Council of the Third Circuit from the Judicial Council of the Ninth Circuit. This opinion sets forth the unanimous findings and conclusions of the Judicial Council of the Third Circuit.

The Judicial Conduct and Disability Act, 28 U.S.C. §§ 351--364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings govern this proceeding. All Rules cited in this Memorandum Opinion are the Rules for Judicial-Conduct and JudicialDisability Proceedings.

I.

A.

Jurisdiction and Procedural History

On June 11, 2008, the Los Angeles Times published on its website an article entitled "9th Circuit's Chief Judge Posted Sexually Explicit Matter on His Website." The article reported, among other things, that the Judge, "who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos." In response to the article's publication, the Judge, who was sitting by designation as a district judge for the purpose of the obscenity trial, suspended the trial to permit exploration of a potential need for his recusal. The next day, the Judge issued a request that the Judicial Council of the Ninth Circuit initiate proceedings under Rule 26 with regard to allegations about him contained in the June 11, 2008, Los Angeles Times article.*fn2 The Judge then declared a mistrial in the obscenity trial and recused himself from the case.

B.

The Complaint and Transfer by the Chief Justice of the United States

The Judicial Council of the Ninth Circuit construed the Judge's June 12, 2008, announcement as the identification of a complaint of judicial misconduct based on the allegations in the June 11, 2008, article. See 28 U.S.C. § 351(b); Rule 5. The Judicial Council of the Ninth Circuit asked the Chief Justice of the United States to transfer the identified Complaint to the judicial council of another circuit pursuant to Rule 26. On June 16, 2008, the Chief Justice granted the request and selected the Judicial Council of the Third Circuit to exercise jurisdiction over the Complaint. See Rule 26.

C.

The Special Committee

On June 20, 2008, the Honorable Anthony J. Scirica, Chief Judge of the United States Court of Appeals for the Third Circuit and Chair of the Judicial Council of the Third Circuit, entered an order appointing a Special Committee to investigate the Complaint against the Judge. See 28 U.S.C. § 353(a)(1); Rule 11(f). The members of the Special Committee were: Chief Judge Scirica, presiding; Marjorie O. Rendell, Circuit Judge, United States Court of Appeals for the Third Circuit; Walter K. Stapleton, Senior Circuit Judge, United States Court of Appeals for the Third Circuit; Garrett E. Brown, Jr., Chief Judge, United States District Court for the District of New Jersey; and Harvey Bartle III, Chief Judge, United States District Court for the Eastern District of Pennsylvania.*fn3

II.

A.

The Allegations

In its June 16, 2008, order, the Judicial Council of the Ninth Circuit stated that the "identified complaint" of misconduct against the Judge "is based on allegations in [the] June 11, 2008, Los Angeles Times article."*fn4 The primary focus of the June 11, 2008, article was the Los Angeles Times's assertion that the Judge "maintained a publicly accessible website featuring sexually explicit photos and videos." According to the article, the "website" - http://alex.kozinski.com - included "a photo of naked women on all fours painted to look like cows," "a video of a half-dressed man cavorting with a sexually aroused farm animal," and "a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair." Regarding the alleged public accessibility of the "website," the article reported that the Judge "said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends." The article noted that the Judge was presiding over the obscenity trial in United States v. Isaacs and questioned whether the material on the computer system "should force him to step aside" from the trial.

The Los Angeles Times apparently was alerted to certain material on the Judge's computer system by Cyrus Sanai, a Beverly Hills, California, attorney. Mr. Sanai contends that, in December 2007, he discovered certain material on the Judge's computer system. Mr. Sanai is a critic of the Judge and other Ninth Circuit judges against whom he has previously filed complaints of judicial misconduct in connection with litigation involving his family. Mr. Sanai has appeals pending before the United States Court of Appeals for the Ninth Circuit in Sanai v. Sanai, Nos. 07-36001 and 07-36002. Those appeals were pending in December 2007, when Mr. Sanai says he discovered the material.

B.

Applicable Standards

The Judicial Conduct and Disability Act defines judicial misconduct as "conduct prejudicial to the effective and expeditious administration of the business of the courts." 28 U.S.C. § 351(a). Under the Rules for Judicial-Conduct and Judicial-Disability Proceedings, judicial misconduct includes "conduct occurring outside the performance of official duties" which "might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people." Rule 3(h)(2). These standards are informed, where appropriate, by the precepts of the Code of Conduct for United States Judges, which are "in many potential applications aspirational rather than a set of disciplinary rules." Commentary on Rule 3. Under the Code of Conduct, "[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." Code of Conduct for United States Judges, Commentary on Canon 2A.

C.

Focus of the Special Committee's Investigation

Proceeding from the allegations in the June 11, 2008, Los Angeles Times article, the Special Committee focused its factual investigation on four areas: (1) the creation, use, and maintenance of alex.kozinski.com; (2) the content of alex.kozinski.com; (3) the public accessibility of the material available at alex.kozinski.com; and (4) the circumstances of the Judge's assignment to the Isaacs obscenity trial.

With respect to the Judge's online computer files, the Special Committee gathered and reviewed information relevant to the following specific questions: (1) Who created, used, and maintained alex.kozinski.com? (2) When was alex.kozinski.com created, and for what purpose? (3) How was it used and maintained? (4) What material was available on alex.kozinski.com? (5) Who placed it there? (6) How and when did that person (or those people) place it there? (7) What security measures, if any, were taken to prevent public access to alex.kozinski.com? (8) Who took such measures? (9) When were such measures taken? (10) Was the material on alex.kozinski.com shared? (11) If so, how and with whom was it shared? (12) Was it shared with the Judge's knowledge or permission? (13) What was the degree and manner of public accessibility to alex.kozinski.com? (14) What were the Judge's beliefs regarding public accessibility? and (15) What did the Judge know about attempts to access alex.kozinski.com?

D.

Investigative Procedure

The Special Committee, assisted by its counsel, Robert C. Heim of Dechert LLP and J. Gordon Cooney, Jr., of Morgan, Lewis & Bockius LLP, investigated these issues by making written and telephonic inquiries; reviewing relevant documents and the image, audio, and video files provided by the Judge; engaging a consultant to advise the Special Committee on certain computer technology issues; and examining the Judge in person, under oath, and on the record. The Judge cooperated fully in all aspects of the investigation. The Judge had the assistance of counsel, Mark C. Holscher of Kirkland & Ellis LLP, throughout the investigation.

Counsel for the Special Committee sent a letter to Mr. Holscher requesting documents and other information. The Judge responded through a detailed letter from Mr. Holscher and a voluminous appendix containing technical information, charts listing the contents of alex.kozinski.com, a disc containing the image, audio, and video files downloaded by the Los Angeles Times from the subdirectory that contained the material referenced in the June 11, 2008, article, and other requested material.

After reviewing the Judge's submission, counsel for the Special Committee identified several follow-up questions in a letter to Mr. Holscher and in several telephone conferences. Mr. Holscher responded with written answers to these questions; no requests were refused.

In order to assist with technical issues in this matter, the Special Committee retained an information technology consultant, who reviewed relevant documents and assisted counsel for the Special Committee in confirming certain technical information. The Special Committee also consulted with the Deputy Circuit Executive for Information Technology for the United States Court of Appeals for the Third Circuit.

The Special Committee requested information in the form of an affidavit from Cyrus Sanai, the attorney who claimed to have alerted the Los Angeles Times to the content and accessibility of alex.kozinski.com. Mr. Sanai responded to the Special Committee's request with a brief sworn affidavit and a lengthy attached "Statement of Facts" covering a variety of topics, including several outside the scope of the identified Complaint.

Mr. Holscher provided to counsel for the Special Committee a legal ethics opinion letter from a law professor contending the Judge engaged in no misconduct. Mr. Holscher later submitted four additional ethics opinion letters from law professors, also contending the Judge engaged in no misconduct, along with a letter brief that drew upon the expert opinions.

After a series of exchanges, counsel for the Special Committee and the Judge's counsel agreed upon twenty-eight factual stipulations relating to the technical matters at issue in the investigation. The technical stipulations were reviewed and verified by the Special Committee's technical consultant prior to counsel's executing the stipulation.

The members of the Special Committee and its counsel thoroughly reviewed the information provided by the Judge, including the computer files comprising the material described in the June 11, 2008, Los Angeles Times article.

The members of the Special Committee and the Judge, accompanied by their respective counsel, convened in Philadelphia for a hearing. For nearly three hours, the Judge testified under oath and on the record about facts relating to the investigation. The hearing began with an opening statement by the Judge, was followed by questioning from counsel for the Special Committee, and was concluded with questions by the members of the Special Committee. The members of the Special Committee found the Judge to be credible and thoroughly responsive to all the questions posed by counsel and the Special Committee.

On April 29, 2009, the Special Committee filed its Report with the Judicial Council of the Third Circuit.*fn5

E.

Overview

In June 2008, a public controversy followed the publication of a Los Angeles Times article that alleged the Judge had maintained a publicly accessible website featuring sexually explicit photographs and videos. The Judge requested this investigation into his personal conduct.

Some media reports in June 2008 suggested that the Judge maintained, and intended to maintain, a public website, as that term is commonly understood - a presentation of offensive sexually explicit material open for public browsing. This investigation has established, however, that such a characterization is incorrect. As explained in further detail, the computer files described in media reports in June 2008 constituted a small fraction of a vast aggregation of various items that the Judge had received by e-mail over many years and had retained in a folder, or "subdirectory," on a personal computer in his home, which had been connected to the Internet using web server software.

Through a combination of improper security configuration and carelessness on the part of the Judge, the aggregation of retained files became accessible to the public.

Uninvited visitors to the web server who knew the name of the specific subdirectory on the Judge's computer could access the files, including the sexually explicit material. At least one Internet search engine catalogued the contents of the subdirectory containing the sexually explicit material, with the consequence that Internet searchers could locate the material. The Judge eventually became aware that members of the public could access the files, although he did not know about the search-engine cataloguing. Despite some small steps to remove offensive material from potential public view, the Judge neglected to complete this task or to disconnect the computer from the Internet. The consequence of the Judge's possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was the public controversy in June 2008.

In testimony under oath before the Special Committee, the Judge explained his habit of saving the files, characterized the aggregation of files as including some offensive and demeaning material, promised to delete the sexually explicit files, and apologized for allowing his personal conduct to embarrass the federal judiciary.

This opinion, which will be made public according to the Rules for Judicial-Conduct and Judicial-Disability Proceedings, concludes the investigation in the following manner. We find that the Judge's possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent. Moreover, once the Judge became aware in 2007 that offensive material could be accessed by members of the public, his inattention to the need for prompt corrective action amounted to a disregard of a serious risk of public embarrassment. We join with the Special Committee in admonishing the Judge that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary. We ...


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