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July 2, 2009

Judge Alex Kozinski cleared of misconduct (but my illegality concern is not addressed)

The blogosphere is buzzing with the news that the Third Circuit, which was tasked with reviewing misconducts complaint against Judge Alex Kozinski, has concluded its investigation via this just-released opinionin which Judge Kozinski is admonished for poor judgment, but cleared any official judicial misconduct.  Specifically, effective coverage can already be found at Above the Law and How Appealing and Patterico's Pontifications.

Though the outcome of this matter strikes me as just right, I am a bit disappointed that the Third Circuit opinion and related commentary completely dodges the dicey question of whether any of the files possessed by Judge Kozinski might have technically been child pornography or illegal obscenity.  The Third Circuit opinion notes that some content Kozinski had was "sexually explicit material [that] is undoubtedly offensive to many."  Slip op. at 27.  But nowhere does the opinion confront the (real?) possibility that this content was illegal to possess under federal law because it could fit the technical definition of child pornography or illegal obscenity under federal law.

I am not eager to assail Judge Kozinski for his behavior, but rather eager to highlight how expansive the technical definitions of child pornography and illegal obscenity can be under federal law.  For that reason, I am not really surprised (bit still remain disappointed) that the Third Circuit and others are eager to dodge these issues altogether.

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July 2, 2009 at 12:41 PM | Permalink

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Comments

"However, the material was kept for its humor or novelty value."

I'd like to see that defense in an obscenity trial.

Posted by: . | Jul 2, 2009 12:43:01 PM

The Third Circuit opinion notes that some content Kozinski had was "sexually explicit material [that] is undoubtedly offensive to many."

Prof Berman, if "many" is 12 jurors, isn't that the definition of obscenity?

Posted by: . | Jul 2, 2009 1:00:40 PM

These charges are bogus lawyer gotcha, by a biased lawyer adversary retaliating against a ruling, which was within the scope of his duty. These charges are themselves a form of lawyer bad faith. The public is oppressed by the criminal cult hierarchy. The lawyer is doubly oppressed. And, the judge is triply oppressed. When these cult criminals meet their fate at the hands of justice, the lawyer and the judge will rejoice far more than the public.

The judge's real crimes are in his decisions, in insurrection against the constitution. This pompous ass sincerely believes he is smart enough to make and destroy law in accordance with personal preferences, and impose his sicko, supernatural beliefs on the public at the point of a gun.

Posted by: Supremacy Claus | Jul 2, 2009 4:48:26 PM

This case has almost made it a standard of lawyer professional due care to demand total e-discovery on the judge after the first adverse ruling.

Posted by: Supremacy Claus | Jul 3, 2009 1:38:05 PM

Prof. Berman: You are questioning whether a judge committed a federal crime. Please specify the nature of the material you question as child porn. Was it pics of naked kids running around a pool or was it prurient sex acts?

I consider this episode to be one of lawyer gotcha, and lawyer bad faith. Lawyer gotcha should be criminalized, and count toward 123D.

The most famous criminal level lawyer gotcha? The impeachment of Bill Clinton. It was a major, unnamed factor in 9/11, covered up by the lawyers on the 9/11 Commission. Lawyers consumed 1000's of hours of Presidential time that should have gone to the defense against Al Qaeda. Those lawyers were Republicans. They must come to account for the 3000 people and the $7 trillion lost. Come the next major terror attack, accounts get settled with the lawyer.

Posted by: Supremacy Claus | Jul 3, 2009 3:41:02 PM

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