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June 13, 2008

Should defendants facing long sentences for downloading child porn be filing Kozinski claims?

There are so many interesting questions and perspectives one can have regarding "Porngate" involving Ninth Circuit Chief Judge Alex Kozinski.  (I wonder if I am the first to call this controversy "Porngate" (first discussed here); perhaps someone who reads all the media coverage linked here can check.)  Of course, my chief questions and perspectives in response to Chief Judge Kozinski's kinky on-line activities relate to sentencing.

Specifically, some of the most challenging post-Booker federal sentencing cases, according to lots of federal judges and recent opinions, involve prominent persons who have led upstanding lives, except for having downloaded the wrong kind of dirty pictures from the Internet.  I suspect (and hope) Chief Judge Kozinski knew better than to download illegal child porn, but his behavior and comments suggest that he believes it is fun and harmless to post and swap a certain type of dirty pictures.  Though the activities of many subject to federal prosecutions are much different and obviously more severe, some actions by federal defendants seem only different from Chief Judge Kozinski's actions by a matter of degrees.

Consider, for example, the recent Miller case from the Third Circuit (noted here).  In Miller, the defendant had a large library of legal adult porn on a zip drive, but it turned out that a handful of images the defendant downloaded (though less than 1% of the total) were illegal.  After losing at trial, Mr. Miller was sentenced to 46 months in federal prison.  And there are, I believe, numerous other similar cases in which defendants have been sent to federal prison for a long time for behavior that does not seem too much different that what Chief Judge Kozinski has been doing for quite some time.

Going forward, this makes me wonder if we will start seeing "Kozinski claims" at the sentencings of persons prosecuted for downloading the wrong kind of dirty pictures.  The argument would be, I think, that if Chief Judge Kozinski did not think he was doing anything wrong and largely gets a pass for this kind of behavior, then a defendant who engaged in similar (but worse) on-line activities should not spend years behind bars.

Am I stretching here, dear readers, or are folks involved in some federal porn downloading prosecutions having some of the same thoughts?

June 13, 2008 at 10:46 AM | Permalink


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Great minds...

Posted by: Michael R. Levkine | Jun 13, 2008 11:15:55 AM

Cory Yung quotes Ann Bartow calls Kozinski 'a disgusting excuse for a human being."

What is a disgusting excuse for a human being? Scalia would have fun deconstructing the definitions in that line.

Sen. Dianne Feinstein says, , "If this is true, this is unacceptable behavior for a federal court judge,"

Is it? If so, why? Does "unacceptable" mean "unacceptable" to everyone? Or is that a personal rather than a universal opinion?

"The phrase 'sober as a judge' resonates with the American public," Gillers said.

Are judges so abstract in their life they cannot be human?

Judge Kozinski says, "Is it prurient? I don't know what to tell you," he said. "I think it's odd and interesting. It's part of life."

If true, is the odd and interesting that is a part of life inherent in the disgusting excuse for human existence?

As usual, for me anyway, this is a chance to deconstruct the media and the special interest rhetoric that is so quick to crucify. That is not to say the media's coverage is prurient, wait, maybe it is, but only to say that all we can do is react to what we are told. The media decides how to slant the story, who to quote, what to leave out. It's a lot like a fictional 3 act play in a movie, and with all movies we expect the antagonist to either reform or die, if necessary killed by the protagonist. We will not be happy until there is closure and the final curtain call. Anything less would be imperfection. Of course, imperfection was the opening hook as well.

We will soon hear "there should be a law against that."

There probably already is and the right law falls like a guillotine as the last curtain falls and someone's head rolls out to the audience. Applause!
So maybe the real question is this: Can laws perfect humanity? Or is that hubris?

There really isn't any good language to describe the negative and possibly harmful consequences of this 3 act play that plays over and over again, with the debate focusing on how it should end, and it is difficult to even question it. It's like a fish in an aquarium not knowing or questioning what water is.

There is a paper on the news as narrative, like fiction writing: beginning, middle, end. I'll try to find it. What I find interesting is the potential connection between fictional expectations, something Americans are especially conditioned to, and real life expectations. Europe is more nuanced in its fiction and its laws and characters are not so black and white.

Posted by: George | Jun 13, 2008 11:44:48 AM

I live in Minneapolis, MN
I came to US as political refugee on human rights violations in former USSR
I am russian jew, and I got a lot of discrimination in USSR
My parents are Holocaust survivors.
But I got the worst thing in USA, never possible in communist country.
I was set up with my computer, convicted as a s..x offender for computer p..rn.
I would like to send you some links to publications about my criminal
case. I was forced to confess to the
possession of internet digital pictures of p..rn in deleted clusters
of my computer hard drive. My browser was hijacked while I was
browsing the web. I was redirected to illegal sites against my will.
Some illegal pictures were found on my hard drive, recovering in
unallocated clusters, without dates of file creation/download.

I do not know how courts can widely press these charges on people to
convict them, while the whole Internet is a mess.

I was fired from many jobs, and I am out of job for 5 years.
Also police watch me all the time naming me a predator,
I am not a predator, I came here in hope to escape human rights violations,
but I got copletely terrible violations by government. All of this
looks like Nazi Germany

Most recent publication in ZDnet


You can find all links to publications about my case here


Posted by: Fima Fimovich | Jun 13, 2008 12:16:57 PM

It seem contrary to our sentencing scheme (and the 1st Amendment) to gloss over the distinction between legal and illegal photos. I am no big Kozinski fan/defender, but it strikes me as odd that a scholar like yourself would equate child-porn convictions with the non-child porn connected with Kozinski?

Are you trying to argue that the distinction between legal and illegal porn is just a "matter of degrees," and therefore untenable? Or are you just trying to lump Kozinski's behavior into the general barrel of illegal activities? I am confused as to the point of your post and find it uncharacteristically tabloidish.

Posted by: Justin Marceau | Jun 13, 2008 1:48:15 PM

Here is an example from China, perhaps a little easier to accept and digest:

Constructing the Hero: Nationalistic News Narratives in Contemporary China (pdf)

Closer to home, since news now more than ever is visual and it is designed to make it difficult to think outside the movie, so to speak. To Tell the Truth: Codes of Objectivity in Photojournalism.

News as narrative. With the three examples of spot news coverage Kobre offers, the importance of narrative becomes clear. In each case, photojournalists are directed to compile a set of photographs which will allow an editor to assemble a sequential visual representation of a news event, telling the story "as it occurred." Since very few stories utilize more than a single photograph, each individual image should be able to tell something significant about the event in case it is used alone. In each example reviewed, the photographic strategy includes making a shot to establish the scene; photographs of participants, whether victims or authorities; representing the nature and extent of conflict, injury, or damage; photographs showing the modus operandi; and photos representing the effect of the incident. In all cases, photographers are instructed to seek out opportunities to represent the affective dimensions of the stories they shoot, personalizing the news and allowing for reader identification and empathy. As the suggested photo possibilities make clear, drama is an important story element because drama draws and holds viewer attention, provoking a more emphatic impact and legitimizing the utility of visual illustrations.

Kobre compares the photojournalist's job with that of the movie director: when Gone with the Wind was shot, the director carefully planned each shot. Photojournalists do the same thing, but they "work under the pressure of the moment" without the luxury of retakes. Going beyond notions of appropriate content, Kobre suggests a specific formal approach to "directing" a photo assignment, assuring visual variety and complete coverage of the event. The establishing shot should be taken from a high angle using a wide angle lens. Medium shots "contain all the `story-telling' elements of the scene...compressing the important elements into one image." The close-up adds drama and "slams the reader into eyeball-to-eyeball contact with the subject." The close-up "elicits empathy in the reader."

Utilizing these strategies allows the photojournalist to produce a dramatic visual narrative. The fact that Kobre employs comparisons from entertainment media--television and film--warrants note. By invoking these comparisons, Kobre implicitly frames news photographs within the domain of narrative fiction. Like a good movie or television show, photojournalism benefits from conflict, excitement, action, and emotion. Pictures exhibiting these qualities are assumed to satisfy readers' visual appetites. The photographic strategies Kobre recommends require a simultaneous conception of news photographs as impartial recordings of events and as dramatic photoplays. This conceptual merger resembles the format of docudrama, an emergent genre of television entertainment that packages fact in the conventions of narrative fiction.

Posted by: George | Jun 13, 2008 2:27:03 PM

Justin, I think the point is perfectly clear, esp when you consider the CA3 case.

That defendant, like Kozinski, appeared to have a rather large pornography collection. Apparently a tiny, tiny fraction of the images he had were child pornography. Perhaps they were of a 16 or 17 year old, and had basically been inadvertently been downloaded when the person was downloading dozens of images of *legal* nude pictures of other teens, of the 18 or 19 year old variety. Yet that man, who is in many respects quite like Kozinski who has just perhaps not been collecting pornography long enough to accidentally download an illegal image or two (or is perhaps slightly more careful than the CA3 man), received a prison sentence of 46 months. His arguments about carelessness obviously were not accepted, yet Kozinski is being given a pass for being flagrantly reckless with setting up his website and for having a proclivity for collecting pornography.

The reality is that *most* collectors of child pornography collect it rabidly. They have an addiction to it. They aggressively seek it out, and carefully collect and store it.

Many, many people enjoy pornography, and it seems somewhat insane to hand out long sentences to those careless people who have enormous LEGAL porn collections that include a trivial number of illegal images (now, sure, that's not to say that one could insulate oneself from child porn charges by downloading a ton of legal porn and then claiming innocence b/c only 1% of your porn is child porn, if, say, it's all in one folder you dubbed "kiddie porn" or your cache shows you made repeated google searches for the same...).

In short, it appears likely that both Kozinski and the CA3 man like pornography and were negligent. AK was negligent in sharing his collection with the entire world. The CA3 man negligently included a small number of illegal images in his collection (i grant you I am assuming negligence was true, and it may not have been, but accept the hypo).

Posted by: Sentencing Observer | Jun 13, 2008 3:11:28 PM

Sentencing Observer,

Okay. If we assume: (1) Kozinski had a few child porn images; or (2) that the CA3 defendant's illegal images were not possessed intentionally, then I grant the connection. I remain skeptical, however, of treating Kozinski's "negligence" in sharing the images with another's "negligence" in possessing child porn. In my mind the distinction is material. If Kozinksi had some illegal images on his computer, the discussion would be different. But drawing an analogy between Kozinski and child porn possessors b/c they both were "negligent" seems tenuous at best.

Posted by: Justin Marceau | Jun 13, 2008 5:04:27 PM

Just a question. Could the law be subjective? Could enforcement be subjective? Could justice be subjective?

Posted by: beth curtis | Jun 13, 2008 5:25:09 PM

The "negligence" claims would be appropriate for trial considerations (i.e., whether the defendant knowingly downloaded child pornography). I don't understand the relevance for sentencing, really.

Actually, a lot of defendants in these cases also download enormous amounts of legal adult porn, including bizarre pornography which Kozinski seems to find interesting.

The whole story is more than a little weird.

Posted by: Alec | Jun 13, 2008 5:31:03 PM


Yes, you are stretching. I largely agree with Mr. Marceau. Judge Kozinski has not been indicted for anything, much less convicted, and still less sentenced. The only facts we have to go on are those reported by the press. They might be true and comprehensive, or they might not be.

If Kozinski is indicted, convicted and sentenced, we of course don't know what the sentence will be. Thus it seems odd at best to think that the Third Circuit defendant could make a "Kozinski claim" for leniency based on a sentence that, if it ever comes into existence at all, could be HARSHER than the one he got.

Of course the whole thing is just complete speculation at this point. Which is why I say you're stretching.

Kozinski is an exceptionally bright man, but I must say I have seldom seen anything from a judge that matches his behavior for sheer stupidity. Judges can become insulated in their own power cocoon, especially when they never have to face the voters, and Judge Kozinski may be suffering from that affliction.

Posted by: Bill Otis | Jun 13, 2008 7:33:14 PM

I dont' think it is a stretch at all although I believe it would be an argument better made at trial than sentencing. Prosecutors in the MDFL just last week convicted well known porn star Paul Little, aka Max Hardcore and his company, MaxWorld, each with five counts of using a computer server to sell and distribute obscene material and each with five counts of distributing obscene matter through the U.S. mail. He faces a maximum of five years in prison for each conviction when he is sentenced. There was no child pornography whatsoever involved in the Max Hardcore case. The charged images were very graphic and degrading sexual images, many of which sound not all that different from some of the more extreme Kozinski images as described in the press. Yet the jury found the images to be "prurient" when Kozinski would have found them merely "interesting" and "odd." Little will go to prison and Kozinski, under other circumstances, could well have been the judge who sentenced him to go there. It seems like there's a place for an argument that what internet based fetish interests we tolerate in our powerful federal judges should be tolerated in our powerless citizens.

Posted by: OtisIsHungry | Jun 13, 2008 10:45:42 PM

Justin Marceau: I am not trying to "to gloss over the distinction between legal and illegal photos," but rather to highlight that extraordinary consequences flow from archiving what the law (sometimes vaguely) declares the wrong kinds of dirty pictures. And, as a result, long prison terms are imposed on persons who "play" on the internet in ways that do not make them vastly different, from a culpability or dangerousness perspective, than Chief Judge Kozinski.

But, to make you feel better, I agree that the analogy becomes strong only if a photo or two that Chief Judge Kozinski archived were illegal.

Posted by: Doug B. | Jun 13, 2008 10:52:11 PM


"It seems like there's a place for an argument that what internet based fetish interests we tolerate in our powerful federal judges should be tolerated in our powerless citizens."

How do you know it's going to be tolerated in the Kozinski incident?

How do you know if the pictues are actually sufficiently similar so that the cases would be the same?

What judge is going to let you make an argument that, instead of applying the law, the jury should find that, if Mr. Big gets away with it, everybody else should too? I never heard of a judge allowing such an argument, nor should it be allowed, since it invites jury nullification.

Posted by: Bill Otis | Jun 13, 2008 11:45:13 PM

Jury nullification was a powerful check on the government back when the death penalty was written into the Constitution. Indeed, the death penalty for treason was in there for those who had too much blind faith in the government (England). They also had a nifty little thing called the benefit of clergy which did a lot to keep the upper class out of the gallows since they could read. It started losing favor when the no-goods started mesmerizing it (Psalm 51). Suddenly the laws had to be fair.

Posted by: George | Jun 14, 2008 12:56:46 AM

mesmerizing it = memorizing it, of course.

Posted by: George | Jun 14, 2008 1:00:12 AM


A lawyer cannot argue nullification to the jury. He cannot say, that is, "You might find that the defendant committed every element of the offense, and has established no defense, but acquit him anyway because you think the law is not enforced as rigorously against Mr. Big."

A lawyer who said that would get the fastest sidebar in history, and the jury would be told to disregard it. If he tried it again, he'd be held in contempt.

Fans of jury nullification don't stop to ask themselves whether they liked the most prominent display of it, i.e., white juries in the past in the Deep South that simply would not convict a white person of a crime against a black person because they thought it would be "wrong" to do so. Once you buy jury nullification, you should understand that that's what's inside the package.

Posted by: Bill Otis | Jun 14, 2008 8:04:19 AM

That's the problem, Mr. Otis. The jury check on tyranny through jury nullification is unlawful because of the government's, predominantly the South's, tyranny. Maybe that comparison confuses the right of jury nullification with the 14th Amendment. It throws the baby out with the bath water. One remedy could be a check on appeal. Was it genuine jury nullification or was it jury nullification in violation of the 14th? If genuine nullification the law should be reconsidered across the board. Set the defendant free and perhaps the public debate would force the legislature to reconsider the law. If in violation of the 14th, set the defendant free and visit the statutory construction of the law as possibly unconstitutional as applied. If enough verdicts are overturned the public as juries would have to reconsider.

Jury nullification is the only check on pandering for votes though laws by representatives of the People that aren't really representative. It is the only time the People, represented by the jury, can consider the law as applied. A juror might vote for nullification despite having voted for the representative that sponsored the law and punishment in question.

We know jurors often negotiate a verdict and compromise. The sentence should be part of their debate.

Posted by: George | Jun 14, 2008 10:06:06 AM

Judge Kozinski clearly knew his child porn and bestiality pictures were available to the other smut peddlers by reason of his robot.txt file which said: User-agent: *
Disallow: /jurist-l/

A copy can be found here

Kozinski sought to keep out only other judges on his subnet. This opens the question of who was paying for this child porn and animal sex-with-humans porn? The public?

For an interesting blog on his previous ruling on an internet case where he ruled no proof is needed for a conviction, see here

Posted by: Kozisayso | Jun 16, 2008 7:58:10 PM

Kozisayso, it is possible I wouldn't like many of Kozinski's opinions, but it's definite that I detest trial by media. The proper remedy was to give the information to the lawyers and let them file a motion for a mistrial if they wanted to, but then I think there should be a standing gag order on all criminal trials. Reporters could be present. They could take notes and get photographs. But no reporting until the verdict is in. That would still uphold the constitutional intent of the 1st when it comes to criminal trials.

Posted by: George | Jun 16, 2008 8:31:14 PM

The constitutional intent of the 1st when it comes to criminal trials went out the window when Lord Koz and his band of Merry Judges on the 9th Circuit decided that "Log Files" containing both (AND YOU NEED THEM BOTH TO ID A SPECIFIC COMPUTER) the IP address AND the MAC address were not needed by any prosecutor to "prove" the element of transmission and location of a file, never mind who transmitted it. Listen to his own words here

Read the Appeal of the case

The prosecutor even admitted on audio during the appeal that the government had no log files at all.

Besides, don't you know Judge Kozinski does not consider himself a mere mortal?

Posted by: Kozisayso | Sep 20, 2008 5:37:55 AM

Correction for the above broken link.: Read the Appeal of the case regarding the MAC and IP here

Posted by: Whowants Toknow | Sep 20, 2008 6:17:16 AM

I have been indicted for not only possession of CP, but also "receiving" and "trafficking" by sending emails to an undercover FBI agent on AOL. There is no distinction as to whether you paid for this or not (which I think should be a very important factor), or if you had other legal porn on your computer, or that you only did this for a few months. You are going to jail because of mandatory sentencing, which very few people know about. AOL puts no warning out to you that by simply trading these images you could face up to 10 years in jail even if you have never had a prior offense. Even worse, you are labled a pedophile, or a future one, and if you say you are not, the shrinks say you are in denial. They punish by how many images, what age they are and what they depict. There are no valid statistics on those that just look and those that offend (I have seen guesses from 30-80%), so many people that are only guilty of looking at pictures are getting long jail time. While I might agree that looking at these images is immoral, I certainly don't feel the jail time associated with it (especially since most don't know the law) is even close to fair. People get probation for accidentally taking another life, but if you view pics you are going to jail for a long time.

Posted by: JC | Oct 4, 2008 10:43:21 AM

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