After a recent L.A. Times story revealed that Judge Alex Kozinski maintained a bawdy Web site while he was presiding over a federal obscenity trial, law bloggers are still grappling with the ensuing scandal that forced Kozinski to recuse himself from U.S. v. Isaacs. The legal eagles have reduced to handy parables the actions of disgruntled lawyer Cyrus Sanai, who tipped off the Times in order to bring down Kozinski, and the debate over whether or not the judge had a reasonable expectation of privacy when his site could be accessed by the public. Some of the more vivid analogies appear below. They do not compare Kozinski or Sanai to a summer’s day.
Analogy: A Family Den
Source: Lawrence Lessig, Stanford University law professor
Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."
Analogy: Brief Case Left on a Bus
Source: “David desJardins” comment posted to above
[Y]ou should know better than to use an analogy that has such negative implications. At least, your analogy should be something like: Judge Kozinski inadvertently left his personal materials lying around in a public place.
Analogy: Keeping Out Robots
Source: “Aaron’s” comment posted to above
If you put your HTTP server on the internet without access controls, it's public. A robots.txt is an intent to keep out robots not people. To me it's the difference between putting a "No robots allowed" vs a "No trespassing" sign on your property.
Analogy: Parking Signs
“James Nightshade’s” comment posted to above
Robots.txt . . . is roughly analogous to a sign one might find beside a residential street: "No trucks except for deliveries." The street is still a part of the road network, even if some vehicles are asked not to visit.
Analogy: Cheap Wine Bottles
Source: Eugene Volokh, UCLA law professor
Sanai's discoveries are similar to someone's finding that a judge who's presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window.
Analogy: Car Windows
Source: Eugene Volokh
It's kind of like your parking your car on the street, locking it, but forgetting to close a back window — or like your throwing out something in the trash without shredding it and leaving the trash cans by the curb. Then someone who has a grudge against you comes by and starts using the open window to rummage around in the stuff you have piled up in the back seat, or starts rummaging through your trash.
Analogy: Windows, Doors and Keys
Source: “Charles Chapman’s” comment posted to above
I think the analogies to homes with open windows, keys in the door, unlocked doors, or even open doors are unpersuasive, at best. The presumption is that one does not enter another's home (and particularly a stranger's home) without permission, even if the door is unlocked.
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Comments
There are 2 comments posted for this article.
You are correct that none of these analogies carry any weight. The point is not Hizzoner's general fitness, or proclivities, it is whether he could be a fair and impartial judge in an obscenity case. If a random visit to his home disclosed the presence of obscenity or cheap wine, then that fact fairly should be disclosed to those asked to accept the Judge to preside over the trial of their clients. It has to be disclosed, and if a litigant wants to ask the judge to recuse, then they may. To not disclose it threatens the fair and open nature of criminal proceedings.
A closer analogy is if I up on charges for a hate crime, and the Judge was a member of the Hitler youth, then I'm entitled to know that. He can argue its in the past, or his private business, but it needs to be disclosed and his fitness challenged.
Posted on June 19, 2008 11:51 AM by Thomason
The temptation for the LA Times reporter who initially reported the Kozinski story (and his editor) was the irresistible man bites dog quality to “Judge presiding over porn trial caught with porn”, and the related temptation to fudge the description of the porn on trial (characterized as vaguely fetish) and enhance the description of the Kozinski material (bestiality) in aid of drawing a parallel between the judge and the judged.
Now, with the benefit of hindsight and some helpful links, we are all (at least those of us who take the time to look beyond the sound bites) able to judge the alleged “porn” for ourselves.
The portrait of The Times that emerges is less than that of careful journalism.
The man “cavorting with” (a deliberately vague word choice by your reporter that can connote some form of sexual play) an aroused donkey turns out to be a humorous video downloaded from You Tube (which is where I watched it) of a laughing fat guy being chased around a pasture by a donkey with an erection. This is neither “porn”—since it is intended to make us laugh and not to arouse—nor is it “bestiality”.
The porn forming the basis of the prosecution over which Judge Kozinski was presiding when The Times story broke: Commercial videos of women having human excrement smeared on their faces. Not even remotely close to the ribald humor found on Judge Kozinski’s family web storage device.
When the suggested parallel between the judge and the judged disintegrates under critical scrutiny, the story is hardly newsworthy at all.
“Judge found with joke emailed pictures of naked ladies with body paint and other bawdy themes on his home computer”? Yawn.
There are temptations in every profession to cut corners and, unfortunately, The Times reporter (and his editor) fell victim to that temptation in this instance.
Fortunately, the legal Blogosphere—one of the few places Kozinski was widely known, came to the rescue and set the record straight. However, not before the story of the “porn judge” with images of “bestiality” on his computer was picked up by almost every media outlet around the world.
The real shame is, for those who had not previously heard of Judge Kozinski, the “porn judge” story will be their first and lasting impression. That harm, caused by a momentary journalistic lapse, cannot be undone.
However, the point is that the "system" DOES act when its processes are (allegedly) abused.
A full exposition of how the psychodrama of Kozinski nemesis and LA Times tipster Sanai’s dysfunctional family (a key allegation being pressed by Sanai, his siblings, and mother in the Sanai v. Sanai federal court litigation is that the defendant-family patriarch ‘bugged” the family residence for decades) ultimately derailed a federal obscenity trial over which Judge Kozinski was presiding will have to wait.
Posted on June 19, 2008 12:54 PM by Stephen Gianelli