Kozinski Cleared:
The Judicial Council of the U.S. Court of Appeals for the Third Circuit, which was charged with reviewing the judicial misconduct complaint against Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, has concluded its investigation. The council's opinion admonished Kozinski for poor judgment, but noted that he acknowledged his mistake and cleared him of misconduct. (HT:How Appealing) More on Above the Law.
UPDATE: For more on this story, see the WSJ Law Blog and Patterico's Pontifications. The former posted the following statement from Judge Kozinski:
I asked the Third Circuit Court of Appeals to thoroughly review this matter, and I am pleased that today’s unanimous decision reaffirms what I have said all along about my private files: They were kept on a private server and were not intended to be shared publicly. Our Ninth Circuit Court of Appeals has much important work to do, and I look forward to continuing to work with my colleagues to accomplish our goals.The LA Times, which helped fan the flames of this story in the first place, reports on the decision, but curiously omits the fact that the judicial council cleared Judge Kozinski of judicial misconduct. Nor, I would note, does the LA Times item mention the opinion explicitly criticized media reports for misrepresenting Kozinski's conduct.
Our prior posts on the Kozinski kerfuffle are here and here.
I am not sure that the Judicial Council "cleared" Judge Kozinski. In fact, it's not clear what exactly they concluded.
They laid out a definition of "misconduct," that included anything that "might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.”
Then, in assessing his behavior, they conclude that (1) the Judge's conduct was "judicially imprudent," and desribe "judicially imprudent" to be something that "may result in gratuitously offending many people and invite public controversy, which in turn may undermine public confidence in the judiciary;" and (2) the Judge's conduct "amounted to a disregard of a serious risk of public embarrassment."
But after making these findings, they never determine whether this was "misconduct." They do not say whether his actions "might have [had] a prejudicial effect on the administration of the business of the courts."
And while they say that he disregarded a "serious risk of public embarassment," and "may [have] undermine[d] public confidence in the judiciary," they don't decided whether he caused a "substantial and widespread lowering of public confidence in the courts among reasonable people."
Instead, switching course, they conclude that his subsequent conduct (including actions taken in testimony at the Judicial Council hearing) negated any need for further action by the Council.
As I read it, then, the Judicial Council dismissed the complaint without deciding whether there was misconduct, but just concluded that all of the Judge's remedial steps negated any need for further remedies (other than the public admonishment). Is that really "clearing" him?
Like you, I don't think what he did merited a more severe punishment. Hell, I don't think what he did really merited a public admonishment, though this might have been unavoidable given the publicized nature of the charge. But "Kozinski Cleared"? Nah.
If that young man was under 18, the mere possession of such an image would appear to be a felony.
And, it would be irrelevant whether or not the Judge had intended to distribute the image or make it available for others.
It is very odd indeed that the report did not even discuss this - which would appear to be the most serious charge leveled at Judge Kozinski.
It is odd to say someone has been "cleared" when that person has "admitted his error" and "apologized for it." It is also odd to say that judicial officer has been "cleared" when the reviewing panel makes a point of referring to "our admonishment, made public in this opinion" -- i.e., public admonishment.
I think it would be more accurate to say that the panel found that no further remedy or action was necessary because: (a) Kozinski had "admitted his error" and "apologized for it"; and (b) been publicly admonished.
The headline could have just as easily, and perhaps more accurately been, "Kozinski Publicly Admonished After Admitting Error."
Or am I missing something?
There is nothing in that opinion about the mp3 music files in Kozinski's possession that were linked on various web sites sharing pirated files.
Where did Kozinski get those copyrighted files he was sharing? Let's hazard a guess: The brouhaha a decade ago concerned the 9th Circuit's judges and clerks downloading porn and music by the truckload and......Kozinski battling the AO to make sure they could continue doing so. For, uh, professional purposes of course.
Inquiring minds want to know where he got the music files. They'd like to more about the computer itself, which escaped scrutiny. Though, of course, those particular minds were not among the hand-picked investigators in this matter.
Kozinski, according to a recent federal court ruling in Minnesota, could be liable for hundreds of thousands or millions of dollars, money due to the RIAA.
Ignorance of the law is no excuse for a federal appeals court judge. Unless, of course, other judges indulge their own ignorance, fed by a single "consultant", and give him a break.
I think "cleared of judicial misconduct" means cleared of any misconduct during his performance as a judge. See the second sentence from paragraph VI:
With respect to the identified Complaint involving alex.kozinski.com, the proceeding will be concluded under Rule 20(b)(1)(B) because appropriate corrective
action has been taken. To the extent the identified Complaint involves the Judge’s conduct with respect to the United States v. Isaacs case, that portion of the identified
Complaint will be dismissed under Rule 20(b)(1)(A)(i).
Perhaps more importantly, you also ignore the fact that while the finding that "appropriate corrective action has been taken" was necessary to the conclusion of the proceeding, it alone was insufficient. The panel also specifically noted the corrective action was accompanied "with our admonishment, made public in this opinion" -- i.e., public admonishment.
I'm sorry, but I've never heard of a judicial officer who has admitted error, apologized, taken corrective action and, most importantly, been publicly admonished, then claim that they have been "cleared."
I know people here like and respect Kozniski; I do too. But some intellectual honestly would also be nice.
The LA Times has a new, more complete article up. The article has the headline of: "Alex Kozinski admonished for raunchy Internet files." Given the fact that the panel's opinion specifically refers to, "our admonishment, made public in this opinion," that headline is more accurate than Jonathan's headline of, "Kozinski Cleared."
As I read the opinion, the panel said that Judge Kozinski violated the Canon, but that his violation did not rise to the level of "misconduct" as that word is defined in judicial misconduct proceedings. The judge then self-administered the appropriate penalty.
Kozinski was stupid. He admits it. He took too long to fix the problem. He admits that, too. Sometimes the correction of a mistake, an apology, and public embarrassment are enough. This is one of those times.
I don't always agree with Judge Kozinski, but he's an independent thinker who takes his job seriously. He improves the quality of the law by making everyone who reads his opinions think more carefully. He's quirky, but that quirkiness is part of what makes him an independent thinker. I don't think I'd want an entire judiciary full of Kozinski's, but I hope he has many more productive years.
That would be the first sentence from paragraph VI, not the second. The second sentence clears Judge Kozinski of any misconduct during his performance as a judge.
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