9th Circ. Chief Judge Escapes Porn Download Case

By Erin Fuchs

Law360, New York (October 28, 2009) -- U.S. Court of Appeals for the Ninth Circuit Chief Judge Alex Kozinski, who was previously rebuked by a panel of his peers for posting racy materials online, has been let off the hook in a misconduct case accusing him of disabling the appeals court's electronic sensors in order to download pornography.

The Judicial Council of the Third Circuit publicly released its opinion dismissing the case Tuesday, saying that the Judicial Conference of the U.S. already tackled the Internet security issues raised in the complaint.

An appeals court administrator brought the complaint against Judge Kozinski and two other judges, accusing them of dismantling software tools used to track Internet communications among the Eighth, Ninth and Tenth Circuits.

Judge Kozinski aimed to disable the sensors to download illegal pornography and illegal music undetected, the administrator said. The November 2008 complaint accused Kozinski of hurting the computer "security system for judges all over the country," according to the decision released Tuesday.

Internet sensors on the courts' computers had rankled Judge Kozinski, according to the complaint. In September 2001, the judge even wrote an op-ed titled "Privacy on Trial" in the Wall Street Journal, criticizing the monitoring.

But the Judicial Conference of the U.S. resolved the conflicts over the monitoring long ago, the Judicial Council said. The conference adopted recommendations in 2001 that addressed the issues of security and Internet privacy in the courts, the opinion said.

"The complaint seeks to reopen this final resolution and will be dismissed," the opinion concluded.

In an amendment to the complaint, the administrator raised the issue of reports that Judge Kozinski had sent friends and associates tasteless jokes through a university e-mail account.

Judge Kozinski has since admitted maintaining a "gag list" to send bawdy jokes and apologized for any embarrassment to the federal judiciary, the opinion said.

"The chief judge is pleased to have these matters behind him," attorney Mark Holscher of Kirkland & Ellis LLP, who represents Judge Kozinski, said following the dismissal of the latest misconduct case.

This is the second misconduct case related to Judge Kozinski's Internet use that the Third Circuit's Judicial Council has taken on recently.

In a 41-page order made public July 2, the council admonished him for posting sexually explicit photos and videos on the Internet, but didn't punish him further.

The council found that Judge Kozinski had exhibited poor judgment and created a public controversy that resulted in embarrassment to the institution of the federal judiciary.

However, Judge Kozinski did not intend to present the explicit material as a Web site open to public browsing, the panel said.

He also explained and admitted his error, apologized for it, recognized its impact on the judiciary, and committed to changing his conduct to avoid any recurrence of the error, according to the opinion.

“We determine that the judge’s acknowledgment of responsibility together with other corrective action, his apology, and our admonishment, combined with the public dissemination of this opinion, properly conclude this proceeding,” Judge Anthony J. Scirica wrote at the time for the unanimous 11-member panel.

The opinion released Tuesday, however, didn't identify Judge Konzinski by name. None of the parties was named, but the context of the opinion — including references to various news reports — revealed "Judge I" as Judge Kozinski.

Kirkland & Ellis LLP represents Judge Kozinski.

Counsel information for the other parties was not immediately available.

The case is In re: Complaint of Judicial Misconduct, case numbers 03-08-90106 and 03-09-90009, in the Judicial Council of the Third Circuit.