"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cost.
It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.” In
Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
Saturday, August 29, 2015
Human-donkey and women-painted-as-cows porn disseminated by a federal appellate judge Alex Kozinski while presiding over an obscenity trial never led to discipline of judge Alex Kozinski. Why?
Alex Kozinski was ardently defended, in consensually published e-mails, by his wife, a California attorney Marcy Tiffany (interesting how judge's wives have a different name - so that people unfamiliar with the marital situation of the attorney would not see a potential for conflicts of interest).
A prominent attorney found that an image of "a fat man running from a donkey with an erection" is not an image of bestiality and was protecting Alex Kozinski from what the attorney believed (or at least expressed) to be a journalistic faux pas.
That prominent attorney apparently took upon himself something he, upon my research of him, was not qualified for - diagnosing a mental illness.
Bestiality, or zoophilia is described in DSM-V (Diagnostic and Statistical Manual for mental health disorders, 5th Edition) on page 705 as an "Other Specified Paraphilic Disorder" with an assigned code of 302,89 (F65.89). DSM (previous and current editions) is a reference source I regularly use in cross-examination of experts in court.
Here is the quote from the description of that mental health disorder:
"... Examples of presentations that can be
specified using the "other specified" designation
inculde, but are not limited to, recurrent and intense
sexual arousal involving ... zoophilia (animals)...
that has been present for at least 6 months and
causes marked distress or impairment in social,
occupational, or other important areas of
Now, all we know is that Judge Kozinski kept on his "family computer" and published on the Internet images from YouTube of a man running away from a donkey with an erection.
We do not know whether Alex Kozinski was aroused by those pictures, whether that arousal as to donkeys was present for 6 months and whether it caused marked distress or impairment in social, occupational, or other important areas of the judge's functioning. That was for authorities to verify.
Judge Kozinski's wife, California attorney Marcy J. Tiffany (who was practicing in Judge Kozinski's court and whose livelihood heavily depended, as an attorney and as a wife, on Judge Kozinski keeping his position) ardently and publicly defended her husband, claiming that the images in question were just "funny" and that "sometimes funny has a sexual character".
A man running from an aroused donkey. Funny. To an judge-attorney couple. To the point of keeping the image on the "family computer" and disseminating it to friends on the Internet.
In her e-mail, Marcy J. Tiffany inadvertently advertised the website/blog of an attorney/litigant who, Marcy J. Tiffany claimed, was behind the "smear campaign" against her husband.
The website posted correct analysis of incorrect decisions by the Ninth Circuit.
Marcy J. Tiffany (or her husband under her name) found it to be good grounds to attack the attorney who posted, once again, correct legal analysis of incorrect decisions of HER HUSBAND's appellate court in order to protect her husband who posted on the Internet human-donkey porn while presiding over an obscenity trial.
Very appropriate, nice balance, nice publicity, or rather, anti-publicity, for her husband.
And, a nice appearance of impropriety since the letter allegedly authored by Marcy J. Tiffany could be just as well authored by Judge Kozinski, for all the detail about the attorney who is allegedly "behind" the "smear campaign".
Alex Kozinski reportedly recused from the obscenity trial where he was presiding while having on this computer and sharing with friends human-donkey "funny" porn - but only AFTER the "controversy" was widely publicized.
Alex Kozinski reportedly even asked to investigate himself (see the same blog, but both links in the blog now "coincidentally" lead to empty pages).
All we know is that after this "self-requested" "investigation", Judge Kozinski was "rebuked, but not formally disciplined", kept his law license, his judgeship and his chief judgeship on the federal appellate court which he himself called, correctly, one of the most powerful courts in the country.
Since Alex Kozinski remained the Chief Judge of the Ninth Circuit until 2014, for 6 more years after the "investigation", apparently, what he did was not found inappropriate.
And the issue whether the "humorous and witty" Judge Kozinski has a diagnosable mental health disorder which may prevent him from proper functioning as a judge remains outstanding - and very much a public issue.
The issue is not that a person views porn. For good or for bad, it is legal.
The issue is that that person happens to be a judge who is often imposing his views and judgment on a vast community.
As one of the commentators to the blog with broken links has stated:
There was apparently not only man-donkey porn displayed by Judge Kozinski on the Internet, and kept on his "family computer".
"The issue is that I hold our federal judges to higher standard; a judge who finds it funny to see women painted as farm animals in a sexual position does not instill confidence".
I couldn't have put it better.