Wholesale Recusal Request Puts 9th Circuit in Unchartered Waters

[WSJ_law_blog]

In all the fuss made over Ninth Circuit Chief Judge Alex Kozinski’s Web site, a related story got smothered: What became of the obscenity trial of accused pornographer Ira Isaacs? When the LA Times first reported that Kozinski had posted sexually explicit material to his Web site, he was poised to begin presiding over the trial, in which Isaacs, a filmmaker, was accused of distributing criminally obscene sexual-fetish videos. Kozinski recused himself, declared a mistrial and called for an investigation into his own conduct, which is still pending.



Ira Isaacs, left, with his attorney Roger Jon Diamond, poses outside the Federal Courthouse, June 9, 2008, in Los Angeles. (AP/Ric Francis)

Ever wonder what happened to the Isaacs? After the mistrial, Isaacs argued that the Constitution’s double jeopardy clause barred his reprosecution, but a new trial judge ruled against him. He appealed to the 9th Circuit. Here’s the latest: The Daily Journal is reporting that federal prosecutors have written to all 50 judges on the 9th U.S. Circuit Court of Appeals, asking them to consider recusing themselves from hearing Isaacs’ appeal. (HT: How Appealing)

The Kozinski Web site photos, the federal prosecutors wrote the judges Oct. 29, “were at least thematically similar to some of the materials in the videos that were the subject of the criminal charges against Isaacs.” The 9th Circuit’s clerk didn’t return the DJ’s call requesting comment on the procedures the court follows in such cases.

(LB NB: Frankly, we haven’t seen the papers, so we don’t entirely get the theory behind the government’s notice — it’s a ‘notice,’ by the way, not a ‘motion.’)

“The number of complications is mind-boggling,” said Arthur Hellman, a law prof at the University of Pittsburgh. “How do they handle this? Do they wait for each judge to send a response? Do they poll the judges and decide by a majority vote? Is it an institutional decision or a set of individual decisions? Or can the judges simply decide that because the government filed a ‘notice’ and not a ‘motion,’ they don’t have to do anything. We’re very much in uncharted waters.”

Issacs’ lawyer, Roger Jon Diamond, isn’t too happy about the recusal request. “It is obvious that what is motivating the Obscenity Prosecution Task Force is its desire to embarrass the 9th Circuit,” Diamond reportedly wrote in court papers. “It is a matter of common knowledge that political conservatives in Washington, D.C., have been trying to split the 9th Circuit for years.”

In a phone interview with the DJ, Diamond added that he wished the trial had gone forward before Kozinski. “He’s smart, he’s relaxed, he’s nice even though he’s a Reagan appointee. And I say that as a criminal defense attorney. He’s a libertarian.”