Friday, November 7, 2008

Prosecutors seek recusal of entire Ninth Circuit in obscenity case

Yes, you read that right.

Some of you will recall the kerfluffle this past June about Ninth Circuit Chief Judge Alex Kozinski's personal porn stash, which he foolishly (and apparently inadvertently) kept on a publicly-accessible server. This was big news in the legal community; Kozinski (a Reagan appointee) is one of the most prominent federal judges, perhaps best known for his witty opinions and his passionate interest in issues of speech, intellectual property, and the Internet. The revelation caused Kozinski to recuse himself from presiding over the obscenity trial of fringe pornographer Ira Isaacs. Kozinski also declared a mistrial and called for an ethics probe of his conduct.

When the Department of Justice sought to retry Isaacs, he argued that a new trial would constitute double jeopardy. This is the issue in his current appeal. And federal prosecutors think that since the circuit's chief judge declared the mistrial, all the other judges should recuse, and have the case heard by judge's from another circuit. There is apparently only one precedent for this, when the Eleventh Circuit recused themselves en masse from the 1992 appeal of a man convicted of murdering one of their colleagues. I don't really see a mass recusal happening here.

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