Peers admonish federal judge over Web sex files

updated 6:08 p.m. ET July 2, 2009

PHILADELPHIA - A high-ranking federal judge who made sexually explicit material available on the Internet was cleared of judicial misconduct with an admonishment Thursday by fellow judges.

Chief Judge Alex Kozinski, of the 9th U.S. Circuit Court of Appeals in California, was "careless" and "judicially imprudent" in possessing the material and not safeguarding his files, the panel found. He also failed to fully correct the problem when it was discovered, the judges said.

However, the panel found no need to discipline Kozinski, who recused himself from an obscenity trial under way last year when news broke that explicit photos and videos were available through the Web address alex.kozinski.com.

Kozinski has said he thought the material — which included a video of a man cavorting with a sexually aroused farm animal and a picture of nude women on all fours and painted to look like cows — couldn't be seen by the public. The judge has also said he didn't believe any of the images was obscene.

'Is it prurient?'
"Is it prurient? I don't know what to tell you," he told the Los Angeles Times in a June 2008 interview. "I think it's odd and interesting. It's part of life."

Kozinski, 58, has since apologized for embarrassing the federal judiciary, according to the 41-page decision released Thursday by the Philadelphia-based 3rd U.S. Circuit Court, which was asked to investigate the misconduct complaint.

"His conduct exhibit(ed) poor judgment," Chief 3rd U.S. Circuit Judge Anthony J. Scirica wrote. "Moreover, once the Judge became aware in 2007 that offensive material could be accessed by members of the public, his inattention to the need for prompt corrective action amounted to a disregard of a serious risk of public embarrassment."

Still, the panel concluded that the public admonishment, combined with his apology and steps he took to remove the material, should end the matter.

Kozinski's lawyer, Mark Holscher, of Los Angeles, declined to comment Thursday on the decision.

Kozinski told investigators he sometimes saved e-mail attachments in a subdirectory without looking at them. He said he did not realize they would become available to the public when his family later put a file server online so they could access personal files when away from home.

Kozinski recused himself and declared a mistrial in last year's obscenity trial of adult film producer Ira Isaacs after a Los Angeles Times story described the mostly humorous but graphically sexual images found through the judge's Web address.

Reaction to the decision
Roger Jon Diamond, who represented Isaacs, said Kozinski did nothing wrong and should not have stepped down.

"He was innocent all along, and he overreacted to the government's attempt to get rid of him," Diamond said.

U.S. attorney's office spokesman Thom Mrozek said the agency would have no comment.

Cyrus Sanai, a Beverly Hills lawyer who discovered the images in 2007 and contacted reporters to expose what he considers ethical problems on the 9th Circuit, called the decision "a complete whitewash."

He accused the judge of illegally distributing copyrighted music and questioned whether the panel had adequately considered that allegation.

"That kind of action when taken by ordinary citizens results in the imposition of huge liabilities," he said.

The decision addresses the issue in a footnote, which says the judge did not intentionally distribute music and did not understand that music files on his server were being accessed by file sharing Web sites.

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