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Wednesday, June 11, 2008 "Turning 'less' into 'more' would be a feat more closely associated with the mutating commandments on the barn's wall in Animal Farm than with sincere interpretation." Finally, a federal appellate court has refused to construe "less" to mean "more" in the appellate timing provision contained in the Class Action Fairness Act of 2005. Chief Judge Frank H. Easterbrook today issued this decision on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. I argued in favor of the result that Chief Judge Easterbrook reached today in the February 13, 2006 installment of my "On Appeal" column for law.com, headlined "Less Is More: When Courts Decide a Law Means the Opposite of What It Says." "Chief Judge Contributed to Racy Web Site": Adam Liptak will have this article Thursday in The New York Times. In response to the double jeopardy aspect of this earlier post of mine, a highly regarded criminal defense appellate specialist emails, "In my opinion, Fed.R.Crim.P. 25(a) permits another judge to take over the trial (after quickly reviewing daily copy, per Rule 25(a)(2)). Mandatory recusal under 455(a) should be understood to be a 'disability' within the meaning of Rule 25. For that reason, termination of the trial is not 'manifestly necessary' and restarting the trial after termination w/o the defendant's consent would constitute double jeopardy." "Unlike Others, U.S. Defends Freedom to Offend in Speech": Adam Liptak will have this article, the latest installment in his "American Exception" series, Thursday in The New York Times. Posted at 10:15 PM by Howard Bashman "LA obscenity trial suspended over judge's Web site": The Associated Press provides a report that begins, "A federal judge has suspended the obscenity trial of a Los Angeles porn distributor following a newspaper report that the judge had sexually explicit material on his own Web site. Judge Alex Kozinski on Wednesday granted a joint motion to suspend the trial after the prosecution said it needed time to look into the issue of the judge's Web site." Thursday's edition of The Washington Post wil contain an article headlined "Judge Assailed Over Sexually Explicit Images on Web Site." And Agence France-Presse reports that "Bestiality trial overshadowed by judge's animal sex video." Number one reason to -- or not to -- share a web server: The story that The Los Angeles Times broke today in a news update concerning Ninth Circuit Chief Judge Alex Kozinski continues to evolve. Both Judge Kozinski himself -- in this post at "Above the Law" -- and the Ninth Circuit's Circuit Executive -- in a statement reported on at WSJ.com's "Law Blog" -- have stated that at least some of the material that is the focus of The LATimes article was placed online by Judge Kozinski's son, Yale. This explanation, which The LATimes article leads one to believe that Judge Kozinski did not initially offer when that newspaper's reporters interviewed him, points out the risks and benefits of sharing a web server with another person. The risk is that the other person may post objectionable things online that third-parties may attribute to you instead. And the benefit is that if third-parties attribute to you objectionable things found on your web server, you can always claim that those things were put there by the other person having an ability to upload things to the web server. Thanks to those readers who have already responded to the inquiries listed in my earlier, related post. I may post some reader comments later tonight. "Judge Who Ruled Against Pledge of Allegiance Hospitalized": Josh Gerstein of The New York Sun has this news update about Ninth Circuit Judge Stephen Reinhardt. This blog's "20 questions for the appellate judge" interview with Judge Reinhardt, from February 2004, can be accessed at this link. Should The Los Angeles Times be praised or condemned for reporting that it discovered pornographic images posted online at Ninth Circuit Chief Judge Alex Kozinski's personal web site, and what if anything makes that discovery newsworthy? As I understand The LATimes article, the images were freely accessible to anyone who knew where on Judge Kozinski's site to find them, but Judge Kozinski was not actively promoting the images for viewing by the general public. Readers of this blog are invited to share their views via email [appellateblog@hotmail.com] on any or all of the following issues, and I will post to this blog any thoughtful responses:
In the most recent coverage of today's news, The Associated Press reports that "9th Circuit judge had sexual images on Web page." Wired.com's "Threat Level" blog has a post titled "Chief Judge in Obscenity Case Caught Posting Porn." And Slate has reposted Judge Kozinski's 1996 Slate Diary with the teaser "When the California Porn Judge Went to a Lingerie Party." Back in 1985, when Judge Kozinski was confirmed to the Ninth Circuit at the age of 35 by a vote of 54 to 43, Ben A. Franklin had this interesting report in The New York Times. "9th Circuit's chief judge posted sexually explicit matter on his website; Alex Kozinski, who is presiding over an obscenity trial in L.A., acknowledges that he had posted sexually explicit photos and videos; He says he didn't think the public could access the site": The Los Angeles Times has posted a news update that begins, "One of the highest-ranking federal judges in the United States, who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as 'funny.'" Chief Judge Kozinski is currently presiding over the obscenity trial of Ira Isaacs, which is the case that is the subject of the post immediately below. Update: The LATimes allows readers to comment on its articles, and reader comments on this article can be accessed here. Los Angeles tells Tampa, Florida, "Our obscenity is far more disgusting than yours": The Associated Press provides a report headlined "LA obscenity case nauseates some potential jurors" that begins, "What violates community obscenity standards in the nation's reputed pornography capital? Federal prosecutors think they have a case." Monday's edition of The Los Angeles Times contained an article headlined "Upcoming trial will see hours of hard-core fetish pornography; Ira Isaacs says his films, which feature bestiality and defecation, have artistic value; Federal prosecutors say they are criminally obscene; Hours of footage will help jurors decide who's right." Yesterday's edition of The Times of London contained an article headlined "The Isaacs pornography case: strong stomachs wanted; Yes, people can easily be shocked; But they often enjoy it." And today in The St. Petersburg Times, columnist Sue Carlton has an essay entitled "Is porn really our biggest problem?" "NY court grants 3 women new chance to stay in US": The Associated Press provides a report that begins, "A Manhattan appeals court has granted three women who suffered genital mutilation in their native Guinea a new chance to stay in the United States. The federal appeals court says the U.S. government should have presumed the women would face further harm once it was established that they had undergone genital mutilation." You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link. "Government Loses High Court Case on Paralegal Costs": Marcia Coyle of The National Law Journal provides this report. Posted at 11:54 AM by Howard Bashman  
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