"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).

“This 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, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"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.

“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.

Sunday, August 30, 2015

Parties with booze in the courthouse and double standards in criminal investigation and prosecution on obscenity grounds based on whether the person to be investigated and prosecuted is or is not a high-ranking judge

Here is why I think it is inappropriate and judicial misconduct for Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit to host monthly movie-night parties with food, alcoholic drinks, involvement of court personnel in preparation and hosting those parties and with invitations of judges, jurors, attorneys and court employees to such parties.

These by-invitation parties have nothing to do with expanding public access to courts, contrary to press describing such parties as "bringing the court and the public closer together".  Public is not invited there, legal elite is.  Nor should the court and the public "get closer together".  

Kozinski, instead of hosting parties in the public courthouse should instead do his job properly and stop tossing civil rights cases under unconstitutional pretexts (equitable theories in federal court while he publicly rejects authority of federal courts to exercise equitable jurisdiction when his own litigation and his own money are concerned).

If anything, the parties hosted by Kozinski with the help of court personnel to the invited elite few create an appearance of elitism of a certain invited group of people as opposed to litigants and attorneys excluded from such invitations, and create questions as to motivation of judge Kozinski and his court behind making this or that decision. 

An appellate judge does not have authority to host private after-hours by-invitation-only parties for legal elite in a public courthouse

Federal appellate courthouses do not have nearly any traffic at all, with most of the appeals decided on paper and rare oral arguments not gathering crowds.   Hosting hundreds of people, especially when alcohol is served, in a building where confidential documents are stored, is a problem. 

Does Judge Kozinski increase security when his movie nights are hosted on a monthly basis?  Who pays for that security?

Possible interference with last-minute death penalty filings
Kozinski’s court hears death penalty cases.  Federal courthouses are kept open on a 24/7 basis to allow last-minute filing in death penalty cases.

Hosting large parties with alcohol may distract court personnel from cases, prevent proper filing and cost people their lives.

Here is a link to the site of the U.S. Court of Appeals for the 9th Circuit with statements "Inmates with pending executions" and "There are no pending executions" that show that the court where parties with alcohol are held DOES handle death penalty cases.

From slip-and-fall, to food poisoning, to assault on premises by an inebriated guest, to serving alcohol to minors (who, reportedly, did attend such parties) must be covered by liability.   Had Judge Kozinski wanted to incur that liability, he would have hosted such monthly parties at his own home.  So, it will be the taxpayers who will foot the bill, including legal fees, if anybody gets hurt and sue the federal government.

Slave labor
Slave labor and indentured servitude are prohibited by the XIIIth Amendment.
Judge Kozinski hosts monthly movie night with food, drinks, alcohol and a salad, for hundreds of people coming by invitation.
Judge Kozinski claims that his administrative assistant helps him shopping for such parties, that the administrative assistant cooks the salad for such parties, and that the administrative assistant and law clerks help host such parties.

Yet, such claims are unbelievable.
·      Buying food for 100-200 people;
·      Cooking salad for 100-200 people;
·      Staying after hours for enhanced security;
·      Catering for 100-200 people;
·      Cleaning after 100-200 people on a monthly basis
Is a job.

I doubt that Kozinski pays court personnel to do that job.
I doubt that court personnel does that job willingly, or, rather, has no choice but to comply with the judge’s “wishes” (demands) or` lose their jobs.

Using court personnel for such parties is highly inappropriate.

Creating disqualifying
social relationships

Lack of transparency

Guest lists to such parties which may lead to forming social relationships disqualifying the court, and to ex parte communications with judges, are not published. 

That creates appearance of impropriety and a sense of uncertainty in litigants whether certain decisions are made by Judge Kozinski and other judges of his court who attend such parties because of ex parte communications during such parties and because attorneys representing the winning side are included into the elite club that is invited to such movie nights.

Kozinski’s wife, an attorney practicing in his court, as hostess of private parties in the courthouse

By allowing his wife to help host parties to the legal elite in a public courthouse, Kozinski sends a message to litigants in his court that his wife (an attorney practicing in his court, which is inappropriate in itself), is part of the court and has power to influence the court.

Favoritism to attorneys over pro se parties

Potential for ex parte communication

Judge Kozinski stated that he invites “attorneys, judges, jurors and court employees”, but never mentioned inviting pro se parties.   Such selective inclusion and exclusion from such parties creates an appearance that Judge Kozinski favors represented parties over pro se parties. 

There is vast potential for ex parte communications between invited attorneys and Judge Kozinski about their cases over a beer bottle at such monthly parties where pro se parties are not invited. 

Favoritism as to some attorneys over others

Attorneys who are invited as opposed to attorneys who are not invited are obviously singled out and considered an elite club of people who get preferential treatment in Alex Kozinski’s court.
Potential influence on the outcome of U.S. Supreme Court Appeals

Kozinski paraded the fact that U.S. Supreme Court Justice Stephen Breyer attended some of the movie night “with his brother, a California judge”.

Not only is it inappropriate for a U.S. Supreme Court Justice to have a brother who is a judge (because the brother’s decisions are appealable to the U.S. Supreme Court), but Justice Stephen Breyer is the judge of appellate court reviewing Kozinski’s court’s decisions.   Hosting parties for him is inappropriate as an attempt to influence Stephen Breyer in his decisions.

Kozinski did not state when exactly Stephen Breyer visited his parties, making it impossible to match cases coming out of the 9th Circuit before the U.S. Supreme Court, but now all voting by Justice Breyer is suspect because of his visits to Kozinski’s movie nights with beer and socializing with “judges and attorneys”.

Gaining support of influential people in case of another disciplinary proceeding

Alex Kozinski regularly gets involved in controversies.  To get him out of disciplinary sanctions, he needs support of high-ranking friends.  Monthly parties in the courthouse by invitation only, with food, alcohol and entertainment can go a long way towards securing social contacts in the right places, contacts that Kozinski will not disclose when presiding over cases and that is impossible to trace since guest lists are not published.

Kozinski so far did not recuse from a case where he was disqualified through owning stock, and recused from an obscenity trial, in the middle of the trial, only after his possession and dissemination of man-donkey and women-demeaning porn was outed by the media.  

There is an appearance that Judge Kozinski is using the lure of movies, free or cheap food, drinks, and socializing with “important” people to secure the right connections that will absolve him of any discipline in case he gets in trouble, including inappropriate use of public courthouse for parties and thus having federal taxpayers incur liability for the use courthouses were not meant or budgeted for.

Potential influence on jurors and contamination of the jury pool

Kozinski invites jurors to his monthly movie parties.  Kozinski does not say whether he invites all jurors or not, prospective jurors or jurors who already served, or jurors already called for particular cases.

Communication with jurors is normally prohibited, and by inviting jurors to the movie nights Kozinski creates an opportunity for a select (and secret, since guests lists are not published) group of attorneys – and judges – to communicate with jurors, contaminating jury pools for years to come.

In view of the fact that juries may decide issues of life and death in death penalty cases, such communication is especially inappropriate.

Example Judge Kozinski gives to other judges in the country
Judge Kozinski is considered by many judges and law professors as one of the most prominent American jurists.  As such, he should lead by example.  At this time, he gives an example of:

·      How to host parties with alcohol at the courthouse after hours, creating liability, breach of security and confidentiality and appearance of impropriety issues;
·      How to use court personnel in preparation of those parties;
·      How to invite a selected group of people to those parties, excluding others

On the other hand, if every judge in the country follows Judge Kozinski’s example and starts hosting monthly club nights in their respective courthouses in accordance with the judge’s personal interests, with alcohol served, for an elite by-invitation only group of people, using court personnel to prepare and host such parties, maybe, the public will get enraged and demand true reform of the judicial system sooner.

Disclaimer:  I never litigated in front of Kozinski, nor my friends or relatives, nor do I plan to, and I have no personal connections with or grudges against Kozinski.

I am upset though that, while creating and contributing to the crisis in constitutional litigation, by dismissing majority of meritorious civil rights appeals on grounds that amount to unconstitutional legislating from the bench (Younger abstention, deference, comity, immunity, Rooker-Feldman doctrine, Iqbal pleading deficiencies), Kozinski tries to appear on a high horse and try to appeal to the public through populist self-advertisement instead of his job.

I am also upset that Kozinski has engaged in substantial judicial misconduct and was never disciplined for it, partially because of the "cordial guy",  "witty intellectual" and "progressive" image he advertises of himself, and because of high connections that he has - including connections with the so-called "legal ethicist" that seem to explain away any blunder that Kozinski commits, no matter how bad.

This country must be based on the rule of law.

Kozinski's example shows that he gets dry out of the pond because of his status and connections, when other people in his position would have likely been charged with a crime - as was with the case of possession of questionable porn that police never checked out.

As a criminal defense attorney, I had clients whose houses were raided because of just a hint to the police that there was bad porn on their computers.

The person over whose trial Kozinski was presiding when he was outed for man-donkey porn on his computer, was convicted and sent to prison for 4 years (!) for creating and distributing images involving "bestiality" and "extreme fetishes".

So, whether Kozinski violated FEDERAL CRIMINAL law was the issue of fact for the jury, after investigation by the police of Judge Kozinski's computer.


Same as Ira Isaacs, Kozinski was disseminating his "funny" stuff, which was exactly what federal criminal obscenity statutes prohibit.

Here is one more description of the "funny" stuff that is "part of life" and that was on Judge Kozinski's computer while he was presiding over the obscenity trial.

Funny joke.

I would really be concerned about female court personnel around such "funny joker" of a judge.

I would really be concerned about female litigants in front of this "funny joker" of a judge.  It appears that this "funny joker" has a really sick mind.

As to Kozinski's claim that "he did not know that public had access to the computer", supported at face value by Kozinski's friend professor Gillers, had Kozinski heard such a claim from a "regular Joe" criminal defendant, he would have sent such a defendant to jail-without-bail until trial, for arrogance and continued danger to the public.

So, what was on Kozinski's computer could very likely be in violation of federal criminal obscenity laws and could constitute a felony, for Kozinski and his attorney wife.

Only now we will never know what was there, because, instead of investigation, Kozinski was encouraged to delete that evidence, there was no investigation, no criminal prosecution, and no jury.

Too many influential friends stood up in his defense accusing the newspaper who published the report, the lawyer who directed information to the newspaper, and explaining away the judge's behavior.

For example, a well known professor of legal ethics Stephen Gillers (now a member of New York State Statewide Commission on Attorney Discipline as an expert on legal ethics) told LA Times in an interview the following:

For the prominent legal ethicist Professor Stephen Gillers, a potential violation of federal criminal obscenity law is being "seriously negligent" when it comes from "a treasure of the federal judiciary" and a person whom Professor Gillers "has known for years".

A good lesson in legal ethics to law students of Professor Gillers.

And a good sneak preview for New Yorkers as to what to expect from Professor Gillers as a member of the Statewide Commission for Attorney Misconduct in New York.  

Advice from an expert - it depends who we need to discipline.  

If it is "a treasure", as determined by some "authority's" subjective definition (possible after some kind of perk like a courthouse-with-booze-and-movies nights) - then there will be no discipline.  If it is "no treasure" - then it is for hell to break loose on the person. 

In the disciplinary investigation, the following was provided to the "Special Committee" of the 3rd Circuit:

  • Evidence from the website, (existence of a hosted website in his name, and the owner has to pay for registration and hosting, defies Kozinski's claims that he did not know that pictures and videos he placed on that website were accessible by other people);
  • Affidavit and Statement of facts from attorney Cyrus Sinai (let's note that no affidavits were requested from or provided by Judge Kozinski);
  • Legal opinions from FIVE law professors claiming that the judge committed NO misconduct whatsoever:
    • not through failure to recuse because he knew he had the same or similar material as what was subject to a criminal trial over which he was presiding;
    • not through failure to recuse immediately after he was outed;
    • not for HAVING such potentially criminally obscene material in his possession;
    • not for sharing such potentially criminally obscene material with his friends

 It is really interesting to know the names of those five law ethics professors...  I am sure, law students and attorneys who were their law students will also be interested to know that they were of such an opinion regarding Judge Kozinski's possession of what is described here.

The opinion of five law professors overcome the common sense, the affidavit of Cyrus Sanai and the evidence provided to the Special Committee - and which, quite possibly, died in that Committee.

Kozinski was absolved without discipline, and was never criminally investigated or prosecuted.

Kozinski's non-investigation and non-prosecution is a good example of how criminal laws are applied in this country.

If you are Ira Isaacson, you go to prison.

Yet, sending "the treasure of the federal judiciary" to prison for a felony means automatic disbarment - and end of career, for both Alex Kozinski and his attorney wife who shared the computer with her husband.

And to do that to a "potential Supreme Court candidate"?  Who hosts booze-and-movie parties in the courthouse where U.S. Supreme Court Justice Stephens comes?  


No, we cannot criminally investigate or prosecute a "nationally respected" judge and a "potential Supreme Court candidate".  We simply cannot have that.

If you are Alex Kozinski or his wife Marcy Tiffany, you are "a treasure of the federal judiciary", and a good friend of 
  • professor Stephen Gillers, and 
  • of professor Arthur Miller, and 
  • of an unknown number of high-standing party-goers to the club-in-the-courthouse-with-booze-and-movies including U.S. Supreme Court justice Stephen Breyers - 

and you are simply "seriously negligent" instead of "committed a crime and an impeachable disciplinary violation", and you escape without criminal liability, and with your law license and judicial position intact.

No investigation whatsoever of Judge Kozinski as to whether images that he kept on his computer and distributed to his friends and the public violated that same federal criminal law.

With Kozinski, whose case was publicized extensively, with the police knowing that there were question of whether some of images he possessed and disseminated were in violation of obscenity laws (for which Kozinski held trials over other people),  just his "word" that it was "nothing", he was simply "negligent", somebody else sent him the pictures that "somehow" ended up on his "personal computer" - prevented such a raid.

What is "bestiality" and what constitutes "extreme fetishes" is obviously a mixed question of fact and law.  To analyze whether the images on the Judge's computer, the images at least had to be subject to a police investigation, prosecution and a jury trial.

Only a jury in this country is allowed to tell, unless jury is waived by the defendant, whether a federal crime was or was not committed.

As to Kozinski, we will never know whether he and his wife did or did not commit a crime, and whether litigants do or do not appear in front of a person who has committed a crime of moral turpitude while judging others.

It will be simply too much for this country, to charge a judge criminally for SUCH an offense.

Ira Isaacson is a different issue, he is not a judge, so he can go to jail for 4 years.

Kozinski timely asked for disciplinary investigation of self and timely "repented" to deflect a criminal prosecution.

Obviously, the disciplinary prosecution was "in lieu" of criminal prosecution.  After Kozinski apologized, he was not even disciplined.

Yet, his apologies are worth absolutely and positively nothing, as he has demonstrated by calling the rule of judicial disqualification for owning stock of a party while presiding over a case involving that party is "stupid" - Judge Kozinski said that in November of 2014, 15 years after he apologized, expressed his "embarrassment" and likely escaped discipline through his apology for violation of that same rule in 1999.

That message, had it come from a regular Joe-from-the-street criminal defendant during the pendence of an investigation against him for possession and dissemination of potentially criminal obscenity - would have gained such a criminal defendant, from an irate judge, jail-without-bail-until-trial.

Yet, Alex Kozinski knew he could pull off this arrogant stuff because he knew nobody would touch him because of his status and his connections.

So, once again, his apologies for any disciplinary violations, in view of his actions - or words - contrary to his apologies, are worth absolutely positively - nothing. 

Moreover, any "insights" from Alex Kozinski about reformation or injustice of American criminal justice system, in my opinion, are insincere - because Alex Kozinski is the one who helped create such system, helped it remain the way it is and used his status to escape criminal liability that jeopardized his and his wife's law licenses and careers.

*   *   *

I do not know who is worse - an openly bad judge, or a judge who pretends to be good, while he is bad inside.

With openly bad judges, such as the much described in my blog and now retired Carl Becker, everything was more or less clear - he was bad, and people expected from him only bad in all of his actions.

Kozinski pontificates about judicial propriety in articles, and then engages in gross acts of impropriety, as I described in blogs posted today and yesterday.

Yet, those gross acts of impropriety are covered up by his influential friends and his projected populist image of the guy who hosts movie nights with booze in the courthouse.  

That makes Becker look good (no, I am not nostalgic for Becker's reign - especially that soon Becker's twin Porter Kirkwood is expected to ascend to the same bench). 

The law should apply equally to the "come-and-have-a-beer-at-the-courthouse-by-my-invitation" judge and to a man from the street.

Doesn't seem like that in Kozinski's case.

And that's what sucks about our sighted Lady Justice.

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