The judicial council of the U.S. Court of Appeals for the 3rd Circuit, assigned to look into allegations against 9th Circuit chief judge Alex Kozinski, issued its memorandum opinion this morning, admonishing him but concluding that no further action or punishment was warranted. By maintaining sexually explicit material on a personal web site and inadequately safeguarding against public access to it, Kozinski's actions were "judicially imprudent" in the view of the council, and amounted to "disregard of a serious risk of public embarrassment."
The opinion contained these excerpts from Kozinski's apology:
"I have caused embarrassment to the federal judiciary. I put myself in a
position where my private conduct became the subject of public
controversy. While this was painful for me personally, my greatest regret is
that I was identified as a federal judge, indeed, as a Chief Judge of the
nation’s largest federal circuit. And thus whatever shame was cast on me
personally, it reflected on my colleagues and our system of justice as well.
* * *
My unfortunate carelessness with certain files on my computer has
embarrassed the federal courts. And for this, I am deeply sorry."
The Kozinski investigation was launched in 2008 after the Los Angeles Times reported that Kozinski's site contained explicit material, at a time when he was about to preside over an obscenity trial (under special designation as a trial judge.) Kozinski declared a mistrial and requested that the 9th Circuit's judicial council look into his conduct. Under special rules for such an investigation, the council asked Chief Justice John Roberts Jr. to transfer the probe to a different circuit. Roberts assigned it to the 3rd Circuit, which created a special committee for the probe.
Chief Judge Anthony Scirica chaired the committee, and was aided by Robert Heim of Dechert and J. Gordon Cooney Jr. of Morgan, Lewis & Bockius as investigators. Kozinski was represented by Mark Holscher of Kirkland & Ellis.
The opinion charts the history and security safeguards for Kozinski's web site, which was launched in 2002. In various subdirectories over time, more than 13,000 files including 7,000 family photos were stored. Kozinski testified to the committee that much of the material was "like old things that I've sort of thrown into a room without looking at them." Friends frequently sent him emails with attachments that he stored, sometime without looking at them. He did acknowledge that he remembered some of the sexually explicit files adding, "I don't know why I kept them." He said he was unaware that some of the files could be accessed by the public.
Kozinski said he never viewed his site as a public web site, according to the opinion, though he would sometimes store course materials that students could access, and once sent a link of a video of himself bungee-jumping to the Underneath Their Robes blog -- which dubbed him a "judicial hottie."
In 2005, the opinion states, the judge learned that some people were viewing materials on his site other than those he meant to make public. He asked his son, a computer expert, to improve security measures, and he then thought unwanted access would end. But it did not, as he learned in 2007. Kozinski then moved some explicit filed to what he believed would be a hidden folder. But he did not complete the sorting process, and the newspaper was able to gain access to embarrassing material.
After the article appeared, Kozinski disabled public access to the site, but on advice of counsel did not remove explicit files "to prevent any concern about spoliation of evidence," the opinion states.
The opinion also concluded that Kozinski did not specifically request the obscenity trial as the one he would preside over.
"Like any citizen, a judge enjoys a zone of privacy," the opinion concludes. "However, a judge's conduct may be legally defensible but judicially imprudent." Given the public admonition and Kozinski's now-public apology, the committee decided no further action is needed.
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