How Appealing


Friday, June 13, 2008

"What's Next for Kozinski?" law.com provides this report, along with a related article headlined "Experts Disagree Over Whether Kozinski Should Recuse From Obscenity Trial."
Posted at 12:02 AM by Howard Bashman




Thursday, June 12, 2008

If you think that what Judge Kozinski did was bad, I know of federal appellate judges who have publicly admitted to viewing child pornography: Of course, those other judges did that in the context of adjudicating appeals in which a criminal defendant was challenging the sufficiency of the evidence supporting a child pornography conviction.

Here are some random thoughts in the aftermath of the news story that The Los Angeles Times broke yesterday.

  • The attorney who drew the material on Judge Kozinski's web site to the media's attention first clashed with Judge Kozinski over whether non-precedential, unpublished opinions should be citeable. See here and here. Who knew that the spirited dispute over Federal Rule of Appellate Procedure 32.1 would lead to this?
  • Sure he apologized, just not to you -- Judge Kozinski's essay replying to the attorney's essay led the attorney to initiate a judicial misconduct proceeding that was terminated by means of an order signed by the Ninth Circuit's then-chief judge saying, among other things, that Judge Kozinski had apologized for his actions. Toward the conclusion of this lengthy article published in April 2008 in The California Lawyer, the complainant says that Judge Kozinski in fact had not apologized to him. Even if that's true, Judge Kozinski still may have apologized -- to the Ninth Circuit's then-chief judge.
  • How uninterested were The Los Angeles Times, The Wall Street Journal, and California's two leading legal newspapers in this story when it was first brought to their attention in January 2008 (see the source's explanation in my update to this post from very early this morning)? Despite Mark Obbie's views regarding the newsworthiness of this matter, those four publications -- which each apparently had been provided with a CD containing many of the images and other files copied from Judge Kozinski's web site -- took absolutely no action to contact Judge Kozinski to learn his side of the story. [Update: Attorney Sanai emails to advise that The LATimes did not possess the CD until the last week or so, and thus only the other three publications had their CDs for a significant amount of time.] Had even one of those publications contacted him, you can be certain that the material in question would have been removed from the web long before Tuesday night of this week.

In what some may view as an ironic coincidence, Judge Kozinski is scheduled to appear this Saturday on a breakout panel titled "Rights in Conflict: Sexual Orientation, Gender Identity and Religious Liberty" at the American Constitution Society National Convention in Washington, D.C. (see page 4 of this PDF file). At precisely the same time, the ACS Convention will also feature another breakout panel titled "The End of Anonymity? Threats to Privacy in a Brave New World" featuring, among others, Law Professors Orin Kerr and Jeffrey Rosen.
Posted at 11:08 PM by Howard Bashman




Thursday, June 12, 2008

"Supreme Court: Guantanamo Detainees Have Rights in Court; In Stinging Defeat for Government, Detainees Have Right to Challenge Detentions." Jan Crawford Greenburg and Ariane De Vogue of ABC News have this report. Jan may soon be hitting the campaign trail.

And CBS News legal analyst Andrew Cohen has a "CourtWatch" essay entitled "Four Strikes, You're Out; High Court Justifiably Checks Executive And Legislative Branch Power Over Terror Trials - Again."
Posted at 10:35 PM by Howard Bashman




Thursday, June 12, 2008

"Judge in Obscenity Trial Linked to Porn Web Page": This audio segment (RealPlayer required) featuring an interview with Los Angeles Times reporter Scott Glover appeared on this evening's broadcast of NPR's "All Things Considered."

Friday's issue of The Independent (UK) contains an article headlined "Obscenity trial halted as judge admits putting porn on his website."

And the organization Concerned Women for America has issued a news release titled "Judge Alex Kozinski Must Resign; California judge overseeing obscenity trial admits his website contains explicit material."
Posted at 08:50 PM by Howard Bashman




Thursday, June 12, 2008

"Justices Rule Terror Suspects Can Appeal in Civilian Courts": Linda Greenhouse will have this article Friday in The New York Times.
Posted at 08:33 PM by Howard Bashman




Thursday, June 12, 2008

"Joyce's trial to move out of town; Former judge to be tried in Pittsburgh": Yesterday's edition of The Erie Times-News contained an article that begins, "Former state Superior Court Judge Michael T. Joyce, who made a name for himself with a long judicial career in Erie, will stand trial about 130 miles to the south, in Pittsburgh. Citing local media coverage of Joyce's federal indictment on fraud and money-laundering charges, a federal judge has made the rare decision to move Joyce's trial from the federal courthouse in Erie, where Joyce was indicted, to the federal courthouse in Pittsburgh."
Posted at 08:27 PM by Howard Bashman




Thursday, June 12, 2008

"The Enemy Within: Who are we more afraid of: enemy combatants or federal courts?" Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 08:24 PM by Howard Bashman




Thursday, June 12, 2008

His life is an open book (albeit somewhat unwittingly): The Associated Press reports that "Judge wants panel to investigate his porn postings."

And The Los Angeles Times provides a news update headlined "Alex Kozinski calls for investigation into his porn postings; The Calif. judge asked an ethics panel of the 9th U.S. Circuit Court of Appeals to initiate proceedings after the disclosure about his trove of sexually explicit material."
Posted at 08:11 PM by Howard Bashman




Thursday, June 12, 2008

"Gun Control Group Braces for Court Loss; 'We've Lost the Battle on What the 2nd Amendment Means,' Brady Campaign Head Says": ABC News provides this report.
Posted at 03:42 PM by Howard Bashman




Thursday, June 12, 2008

The case may be cert.-worthy, but that doesn't make it worthy of en banc review from the U.S. Court of Appeals for the Second Circuit: The Second Circuit -- which stubbornly clings to the now superseded "in banc" terminology -- today has issued yet another decision demonstrating just how difficult it is to obtain en banc review from that court. The vote on whether to grant en banc review in this particular case was 7-6. Today's order is accompanied by two opinions concurring in the denial of en banc review and one opinion dissenting from it. The order also notes that additional concurring or dissenting opinions may yet be filed.
Posted at 03:40 PM by Howard Bashman




Thursday, June 12, 2008

"Meet The Cow Porn Judge!" Sara K. Smith has this post at "Wonkette."
Posted at 03:11 PM by Howard Bashman




Thursday, June 12, 2008

Tony Mauro is reporting: At "The BLT: The Blog of Legal Times," he has posts titled "Dramatic Day at the Supreme Court" and "A Goodbye for Greenhouse."
Posted at 02:58 PM by Howard Bashman




Thursday, June 12, 2008

"Court Says Guantanamo Detainees Have Right to Challenge Detention": Robert Barnes of The Washington Post has this news update.

David G. Savage of The Los Angeles Times has a news update headlined "Supreme Court again says Guantanamo prisoners should have rights; For the third time in six years, the justices reject the Bush Administration's view that enemy combatants do not have a right to habeas corpus - a hearing before a judge; The practical effects of the ruling, though, are unclear."

In Friday's edition of The Christian Science Monitor, Warren Richey will have an article headlined "Guantanamo detainees win right to court review; The US Supreme Court ruled 5 to 4 Thursday that those held in Guantanamo can challenge their detention."

And Michael Doyle of McClatchy Newspapers reports that "Supreme Court rules Guantanamo prisoners have right to sue in U.S. courts."
Posted at 02:52 PM by Howard Bashman




Thursday, June 12, 2008

The Associated Press is reporting: Now available online are articles headlined "Detainee ruling triggers scramble among DC judges"; "Court ruling hinders Marcos victims seeking funds"; "Supreme Court rejects limits on FOIA lawsuits"; and "Court rules against defendant in sentencing case."
Posted at 11:50 AM by Howard Bashman




Thursday, June 12, 2008

U.S. Court of Appeals for the Second Circuit refuses to recuse entire U.S. Department of Justice from representing the federal government in cases on appeal from rulings of then-U.S. District Judge Michael B. Mukasey: You can access today's ruling at this link.

The Second Circuit's opinion notes that "This is not the first time the country has had an Attorney General with prior experience as a judge."
Posted at 11:44 AM by Howard Bashman




Thursday, June 12, 2008

"Top court allows Guantanamo prisoners' appeals": James Vicini of Reuters provides this report.

Greg Stohr of Bloomberg News reports that "Guantanamo Inmates May Seek Release, High Court Says."

And Bill Mears of CNN.com provides a report headlined "Justices: Gitmo detainees can challenge detention in U.S. courts."
Posted at 11:15 AM by Howard Bashman




Thursday, June 12, 2008

"News judgments about Kozinski's porn": Mark Obbie has this interesting post at his "LawBeat" blog.
Posted at 11:02 AM by Howard Bashman




Thursday, June 12, 2008

BREAKING NEWS -- U.S. Supreme Court issues ruling in cases challenging whether Military Commissions Act of 2006 violates the habeas corpus rights of foreign detainees held at Guantanamo Bay: According to this post at "SCOTUSblog," "[t]he ruling below, which found for the government, is reversed. Justice Kennedy wrote the opinion. The Chief Justice, Justice Scalia, Thomas and Alito dissented."

You can access today's 134-page, 5-4 ruling in Boumediene v. Bush, No. 06-1195, at this link. For those wishing to view the oral argument transcript, it remains online here.

Both the Chief Justice and Justice Antonin Scalia issued dissenting opinions, and all four dissenters joined in both dissents. In his dissent, Justice Scalia writes, "The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed." Justice Scalia's 25-page dissenting opinion concludes, "The Nation will live to regret what the Court has done today. I dissent."

At "SCOTUSblog," Lyle Denniston has a post titled "Court gives detainees habeas rights." Lyle's post describes the ruling as "a stunning blow to the Bush Administration in its war-on-terrorism policies."

And Mark Sherman of The Associated Press has a report headlined "High Court: Gitmo detainees have rights in court."
Posted at 10:07 AM by Howard Bashman




Thursday, June 12, 2008

Today's U.S. Supreme Court opinions in argued cases: The Court today issued a total of five rulings in argued cases.

Today's first opinion in an argued case issued in Taylor v. Sturgell, No. 07-371. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court. You can access the ruling at this link and the oral argument transcript at this link.

Today's second ruling issued in Boumediene v. Bush, No. 06-1195. Justice Anthony M. Kennedy delivered the opinion of the Court, in which Justices John Paul Stevens, David H. Souter, Ginsburg, and Stephen G. Breyer joined. Justice Souter also issued a concurring opinion, in which Justices Ginsburg and Breyer joined. The Chief Justice issued a dissenting opinion, in which Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr. joined. Justice Scalia also issued a dissenting opinion, in which the other three dissenters also joined. You can access the ruling at this link and the oral argument transcript at this link.

Today's third ruling issued in Republic of Philippines v. Pimentel, No. 06-1204. You can access the ruling at this link and the oral argument transcript at this link.

Today's fourth ruling issued in Irizarry v. United States, No. 06-7517. You can access the ruling at this link and the oral argument transcript at this link.

Today's fifth and final ruling issued in Munaf v. Geren, No. 06-1666. You can access the ruling at this link and the oral argument transcript at this link. In early coverage of this ruling, The Associated Press reports that "Court rules against 2 US citizens in Iraq."
Posted at 10:05 AM by Howard Bashman




Thursday, June 12, 2008

"Judge in porn tempest has distinguished career": The Associated Press provides a report that begins, "Alex Kozinski is more accustomed to appearing on lists to fill U.S. Supreme Court vacancies than headlines involving pornographic scandals. But on Wednesday, the chief judge of the country's largest federal appeals court was forced to suspend an obscenity trial he was presiding over after sexually explicit images posted to his his family's Web site became public."

The person responsible for alerting the news media to this story was identified late yesterday as a Los Angeles-area attorney, and in this post from very early this morning I reproduce portions of two emails that I received from that attorney after midnight this morning.
Posted at 08:40 AM by Howard Bashman




Thursday, June 12, 2008

"Court Rejects Decisions of Immigration Board": The New York Times today contains an article that begins, "In a scathing opinion, a federal appeals court in Manhattan ruled on Wednesday that immigration judges and the appellate system established as a check on their decisions committed 'obvious errors' by denying asylum to three Guinean women who claimed that they were victims of genital cutting back in Africa."

My earlier coverage of yesterday's Second Circuit ruling appears at this link.
Posted at 08:37 AM by Howard Bashman




Thursday, June 12, 2008

"A Justice Orders a Pay Raise for New York's Judges": This article appears today in The New York Times.

And today in The New York Sun, Joseph Goldstein reports that "N.Y. Judge Orders Himself a Raise; Could Cost Taxpayers $700 Million."
Posted at 08:22 AM by Howard Bashman




Thursday, June 12, 2008

"A Child's Death And a Crisis for Faith": The Wall Street Journal today contains an article that begins, "The recent death from untreated diabetes of an 11-year-old Wisconsin girl has invigorated opposition to obscure laws in many states that let parents rely on prayer, rather than medicine, to heal sick children."
Posted at 08:12 AM by Howard Bashman




Thursday, June 12, 2008

"Child-abuse claims vs. parents' rights: Supreme Court mulls whether to take a suit accusing Illinois of forcing families to give up rights." Warren Richey has this article today in The Christian Science Monitor.
Posted at 08:08 AM by Howard Bashman




Thursday, June 12, 2008

In commentary available online at FindLaw: Joanna Grossman has an essay entitled "The Supreme Court Holds that an Important Federal Civil Rights Law, Section 1981, Prohibits Retaliation as Well as Discrimination."

And Julie Hilden has an essay entitled "The Supreme Court's Recent Child Pornography Decision, and the Problem with Narrowly Construing Statutes with First Amendment Implications." Julie's essay is part one of a two-part series.
Posted at 08:00 AM by Howard Bashman




Thursday, June 12, 2008

"Judge suspends L.A. obscenity trial after conceding his website had sexual images; Alex Kozinski admits he posted some of the explicit content; He says he didn't think the public could see the site, which is now blocked": Scott Glover has this article today in The Los Angeles Times.

Today in The San Francisco Chronicle, Bob Egelko reports that "Judge in hot water over Web site sex photos."

And at "Concurring Opinions," Kaimipono D. Wenger has a post titled "Judges Gone Wild."

The person responsible for alerting the news media to this story was identified late yesterday as a Los Angeles-area attorney, and in this post from earlier this morning I reproduce portions of two very recent emails that he sent to me.
Posted at 06:44 AM by Howard Bashman




Thursday, June 12, 2008

"Porn Stash Puts Obscenity Case Judge in Awkward Spot": Josh Gerstein of The New York Sun has this article today.
Posted at 12:55 AM by Howard Bashman




Thursday, June 12, 2008

"9th Circuit's Chief Judge Snared in Web of Kink": law.com provides this report.
Posted at 12:44 AM by Howard Bashman




Thursday, June 12, 2008

"The L.A. Times's Tipster on Kozinski's Porn: Cyrus Sanai." This post appears at "Patterico's Pontifications."

At 12:05 a.m. this morning, I received an email from Mr. Sanai that begins, "I'm the person who tipped off the LA Times about Judge Kozinski. This is all part of the ongoing misconduct proceedings against Judge Kozinski that grew out of 'Kozinski Strikes Back,' which you have kindly kept available for public viewing."

The email goes on to advance a technology-based argument, whose validity I am incapable of evaluating, that only Judge Kozinski had control of the portion of the internet domain on which the material in question appeared.

Mr. Sanai and Judge Kozinski have previously crossed swords in essays that remain freely available online exclusively via "How Appealing Extra" here and here.

Update: In a follow-up email that I received from Mr. Sanai at 12:44 a.m. this morning, he writes:

I discovered this information on Xmas Eve, 2007. * * * * I immediately downloaded so much material that his internet provider cut him off. When the site went back up, Judge Kozinski had removed some of the biggest video files. * * * * I pitched it to the Daily Journal, the Recorder, the LA Times and the WSJ through end of January 2008. I was interested in his site because of my renewed misconduct complaint against Judge Kozinski, which focused on, among other things, his placement of the transcript of Judge Thibodeau on alex.kozinski.com. Interestingly enough, your capture of that link is the only evidence that remains of this on the internet. So thank you! Terry Carter of the ABA Journal contacted me last month, and was actually working on this story when the LA Times decided to break it.

John Roemer wrote an article for the Daily Journal, which his editors killed. You find a trace of it in his piece on Kozinski in the California Lawyer.

The LA Times reporter I contacted, Henry Weinstein (who extensively covered the Manuel Real stuff) said he would get to it, then he took the buyout. I contacted Scott Glover, the reporter on the obscenity trial, last Sunday, June 8, 2008. He knew nothing about my prior contact with the LA Times; but that institution is in disarray because of the well-covered restructuring. Therefore, it would not be fair to say that the LA Times "held it". The institutional knowledge of my prior contact disappeared * * * *

The Recorder's executive editor, Scott Graham, is still mad at me for getting the original piece published, and would not run anything. However, they have taken on the very important material I passed on to them from Meachem six months ago. Their current article accurately summarizes Kozinski's slapdown by Rehnquist.

* * * *

It is correct to say that the Daily Journal, the Recorder, and the WSJ deliberately held this information from the public. By mid February, 2008 all three had the same CD of material that I gave to the LA Times last Monday.

I point out, also, that the LA Times found items that were uploaded after December, 2007. The naked guy cavorting with the donkey is something I do not have and I don't think was on the web site on December 24, 2007.

Mr. Sanai's email states that he will be interviewed live about this matter on the Los Angeles NBC affiliate's 11 p.m. pacific time newscast.
Posted at 12:30 AM by Howard Bashman




Wednesday, June 11, 2008

"Turning 'less' into 'more' would be a feat more closely associated with the mutating commandments on the barn's wall in Animal Farm than with sincere interpretation." Finally, a federal appellate court has refused to construe "less" to mean "more" in the appellate timing provision contained in the Class Action Fairness Act of 2005. Chief Judge Frank H. Easterbrook today issued this decision on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.

I argued in favor of the result that Chief Judge Easterbrook reached today in the February 13, 2006 installment of my "On Appeal" column for law.com, headlined "Less Is More: When Courts Decide a Law Means the Opposite of What It Says."
Posted at 11:55 PM by Howard Bashman




Wednesday, June 11, 2008

"Chief Judge Contributed to Racy Web Site": Adam Liptak will have this article Thursday in The New York Times.

In response to the double jeopardy aspect of this earlier post of mine, a highly regarded criminal defense appellate specialist emails, "In my opinion, Fed.R.Crim.P. 25(a) permits another judge to take over the trial (after quickly reviewing daily copy, per Rule 25(a)(2)). Mandatory recusal under 455(a) should be understood to be a 'disability' within the meaning of Rule 25. For that reason, termination of the trial is not 'manifestly necessary' and restarting the trial after termination w/o the defendant's consent would constitute double jeopardy."
Posted at 11:35 PM by Howard Bashman




Wednesday, June 11, 2008

"Unlike Others, U.S. Defends Freedom to Offend in Speech": Adam Liptak will have this article, the latest installment in his "American Exception" series, Thursday in The New York Times.
Posted at 10:15 PM by Howard Bashman




Wednesday, June 11, 2008

"LA obscenity trial suspended over judge's Web site": The Associated Press provides a report that begins, "A federal judge has suspended the obscenity trial of a Los Angeles porn distributor following a newspaper report that the judge had sexually explicit material on his own Web site. Judge Alex Kozinski on Wednesday granted a joint motion to suspend the trial after the prosecution said it needed time to look into the issue of the judge's Web site."

Thursday's edition of The Washington Post wil contain an article headlined "Judge Assailed Over Sexually Explicit Images on Web Site."

And Agence France-Presse reports that "Bestiality trial overshadowed by judge's animal sex video."
Posted at 10:09 PM by Howard Bashman




Wednesday, June 11, 2008

Number one reason to -- or not to -- share a web server: The story that The Los Angeles Times broke today in a news update concerning Ninth Circuit Chief Judge Alex Kozinski continues to evolve.

Both Judge Kozinski himself -- in this post at "Above the Law" -- and the Ninth Circuit's Circuit Executive -- in a statement reported on at WSJ.com's "Law Blog" -- have stated that at least some of the material that is the focus of The LATimes article was placed online by Judge Kozinski's son, Yale.

This explanation, which The LATimes article leads one to believe that Judge Kozinski did not initially offer when that newspaper's reporters interviewed him, points out the risks and benefits of sharing a web server with another person.

The risk is that the other person may post objectionable things online that third-parties may attribute to you instead. And the benefit is that if third-parties attribute to you objectionable things found on your web server, you can always claim that those things were put there by the other person having an ability to upload things to the web server.

Thanks to those readers who have already responded to the inquiries listed in my earlier, related post. I may post some reader comments later tonight.
Posted at 08:25 PM by Howard Bashman




Wednesday, June 11, 2008

"Judge Who Ruled Against Pledge of Allegiance Hospitalized": Josh Gerstein of The New York Sun has this news update about Ninth Circuit Judge Stephen Reinhardt.

This blog's "20 questions for the appellate judge" interview with Judge Reinhardt, from February 2004, can be accessed at this link.
Posted at 06:27 PM by Howard Bashman



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