Judge Kozinski’s web site and Cyrus Sanai

by Ted Frank on June 12, 2008

The Patterico blog has details of some of the coarse humor that was available on Judge Alex Kozinski’s website. Kozinski can be criticized for indiscretion in failing to realize that his website was publicly accessible, and opening himself up to this politically-motivated silliness, but I fail to see why a judge’s e-mail habits should be a scandal. Yes, Kozinski apparently has an immature sense of humor, but we already knew that.

Of more interest is that the attorney peddling this, Cyrus Sanai, has been targeting Kozinski for years. Perhaps because of this Recorder article of September 23, 2005, responding to a Sanai op-ed criticizing the Ninth Circuit, and written by Kozinski:

Despite his colorful language, Mr. Sanai’s article raises no legitimate question about whether the Ninth Circuit has been derelict in following circuit or Supreme Court precedent. But the article does raise serious issues of a different sort. Mr. Sanai’s article urges us to “grant en banc rehearing of the next decision, published or unpublished, which asks the court to resolve the split among H.C., Napolitano and Mothershed.” A petition for en banc rehearing raising this very issue crossed my desk just as Mr. Sanai’s article appeared in print. The name of the case? Sanai v. Sanai. A mere coincidence of names? Not hardly. The petition, signed by Mr. Sanai, cites the same cases and makes the same arguments as his article — including the reference to “Catch-22.”

Mr. Sanai’s byline modestly lists him as “an attorney with Buchalter Nemer in Los Angeles.” The firm’s Web site identifies him as “a Senior Counsel and English solicitor … [whose] practice focuses on project finance, corporate finance and business transactions, with a particular expertise in international finance transactions.” The careful reader would therefore have no cause to doubt that Mr. Sanai is a disinterested observer of this court’s Rooker-Feldman jurisprudence. Nothing alerts the reader to the fact that Mr. Sanai has been trying for years to get the federal courts to intervene in his family’s state-court dispute, an effort referred to by a highly respected district judge as “an indescribable abuse of the legal process, … the most abusive and obstructive litigation tactics this court has ever encountered. …” Nor would the reader — unless he happened to enter Mr. Sanai’s name in the Westlaw CTA9-ALL database — realize that, as part of the same imbroglio, he and certain members of his family have hounded a state trial judge off their case; been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as “frivolous” and “an improper dilatory tactic” by the district court. A detached observer, Mr. Sanai is not.

Sanai responded by bringing disciplinary charges against Kozinski, and now appears to have succeeded in embarrassing him. More at Bashman. The question is how someone who has frequently engaged in frivolous litigation still remains a member of the California bar without any disciplinary record. It will be appalling if Kozinski faces judicial discipline in this dispute before Sanai faces attorney discipline.

Meanwhile, the obscenity trial Judge Kozinski was presiding over was suspended. One hopes that Kozinski doesn’t recuse himself for the perception of a perception of bias when there’s no evidence of bias, and that the jury, which has already spent several hours watching unpleasant videos, need not have that effort wasted in a mistrial.

(Disclosure: in 1992, I interviewed for a clerkship with Kozinski, who was still interviewing when I accepted another clerkship for the 1994-95 term. Later that academic year, I was in a poker game with the judge and his bright young clerk, when the judge spoke at Chicago Law.)

(Update: Patterico was first to note the previous Sanai dispute; Sanai has commented there.)

Further update: Above the Law roundup (which omits us, sniff). And Kozinski has asked for an investigation of himself to be opened.

Further update: Patterico has the resolution of the disciplinary complaint against Kozinski made by Sanai; Kozinski was exonerated, but apologized anyway. But .mp3s on a private directory is not illegal “file-sharing”; the Kozinski opinion (which was a dissent) Patterico refers to is about “knowingly providing crucial transactional support services” for infringement, so there’s not even hypocrisy if Kozinski mistakenly believed that his site was private.

June 13 PM: Eugene Volokh, as always, pithily summarizes:

Now the fruit of this disgruntled lawyer’s rummaging through someone else’s personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. 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. The news value of that would be what, exactly? …

Enough already. As Larry Lessig puts it, no-one should be put in the position of “hav[ing] to defend publicly private choices and taste” in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we’d like the world to leave us to ours.

Just so.

June 15: New post: Kozinski recuses himself, and more on Cyrus Sanai’s litigation history, including the sanctions order referred to in Kozinski’s Recorder article.

{ 7 trackbacks }

The Volokh Conspiracy
06.13.08 at 2:36 pm
Judge Alex Kozinski « Life, Liberty and Property
06.14.08 at 9:51 am
Kozinski recuses himself; Judge Zilly’s sanctions order against Cyrus Sanai
06.15.08 at 10:54 am
Kitty porn « Miss Havisham’s Tea Party
06.15.08 at 2:19 pm
Latest on Kozinski and Cyrus Sanai
06.16.08 at 5:24 pm
Cyrus Sanai: Kozinski investigation “is part of a litigation strategy”; second Sanai v. Saltz sanctions order
06.17.08 at 2:04 pm
Tynan on Technology (beta) » Blog Archive » Jurists gone wild
06.23.08 at 10:12 am

{ 27 comments }

1 Patrick 06.12.08 at 12:38 pm

Apart from the fame Sanai had previously acquired from the rebuke delivered to him by Kozinski for his litigation tactics (referenced in the first Patterico link above), Cyrus Sanai was previously most notorious for arguing that high school extracurricular activities such as sports and student government were the root of the Columbine massacre.

Assuming that there aren’t two Cyrus Sanais running around at large.

2 Ron Miller 06.12.08 at 3:59 pm

Ted, I realize you have loyalites to the guy and I appreciate that. But did you see that picture with what appears (regardless of whether it is) and the man dressed as a priest. This is not just bad judgment. Who exactly does not know that a website can be accessed pubically. This comes as a surprise?

I realize this Sanais is probably a bad seed. But so what? There are lots of people practicing law that shouldn’t which we all know from reading your blog. But this guy is a 9th Circuit judge.

I blogged my thoughts here:

http://www.marylandlawyerblog.com/2008/06/judge_alex_kozinskis_website.html

3 Ted Frank 06.12.08 at 5:13 pm

Do you mean the photo of the radio DJs’ Halloween costume with a puppet, or do you mean the photo of an actual stained-glass window that recent events have turned into a double-entendre? Not my sense of humor, but I don’t have a public-policy problem with either of those. He’s been appointed to an Article III judgeship, so I’m concerned about judges’ oaths to uphold the Constitution, not about monastic oaths that were never taken. I’d hate to find out I’m ineligible for the judiciary because I played Grand Theft Auto.

Vis-a-vis the oaths that have been taken, there are Ninth Circuit judges out there who should be impeached, but Kozinski isn’t one of them.

4 Ron Miller 06.12.08 at 5:36 pm

Certainly, we can agree that depicting child porn with a priest is different from Grand Theft Auto, right? This is not moral equivalence and I think it is an oversimplification. I don’t think it requires a monastic oath to ask a 9th Circuit judge to not publish a picture that looks like a child performing oral sex on a priest.

How far would he have to go before you would say, “Hey, Art. III judge or no, this guy has to go?” What if was found to have child porn? What if he was found to have molested a child? Are these also protected by the “he’s an Article III judge” mantra? Of course not.
So it is worth someone looking at these picture (I vote not I) and deciding whether this guys is fit to be a judge.

5 E-Bell 06.12.08 at 5:39 pm

Oh, come on. It’s a photo of a funny Halloween costume.

Unless you’re a devout Catholic, that is.

6 Ted Frank 06.12.08 at 5:43 pm

child porn with a priest

There was no “child porn with a priest” on the Kozinski server. There was a Halloween costume involving a puppet used by a radio station as a promotional photo, and there was a stained glass window from a church. Neither of those is illegal or harms people. You may be offended by the joke, but that’s exactly my point: other people would be offended that I play Grand Theft Auto, so something more than offensiveness in one’s private viewing habits is required.

7 Cyrus Sanai 06.12.08 at 9:44 pm

Mr. Frank,

It would be nice if you would do some research before characterizing my initial disciplinary complaint against Kozinski as frivolous; in fact it terminated in my favor. He acknowledged part of my complaint had merit, and issued a very grudging apology. However, he apparently denied that alex.kozinski.com existed, and so the portion of my complaint concerning that was dismissed on grounds of lack of evidence.

Second, you should more carefully read Patterico’s posts. He too was initially hostile, but now agrees with me that Kozinski has a very serious problem with file-sharing and copyright violations. It was Kozinski’s file sharing that led me to his site.

Third, the stuff posted on Patterico is the mild content.

Cyrus Sanai

8 jbd 06.13.08 at 8:28 am

Judge K is an unusual guy. I saw him at a debate on the death penalty, in which he very aggressively took the pro-DP side. Fair enough, there are definitely two reasonable sides to that debate.

But he defended his position by launching into extremely graphic and grotesque descriptions of torture and murder of children by pederasts. It was weird and kind of spooky.

One anti-DP audience member, when he got a turn to speak, commented on the “relish” with which Kozinski recounted these stories. I had the same impression. And I’m someone who’s really admired some of his rulings, particularly when he took on prosecutorial absuses.

9 Joe Bingham 06.13.08 at 10:03 am

How high were the stakes? Who came away a winner?

I can’t believe this story was on Morning Edition today. With some podunk Loyola law professor implying Judge K. should resign. Dear God. It was even on our local Tampa morning talk shows…

JAB

10 Joe Bingham 06.13.08 at 10:41 am

Sorry, it was all things considered last night. I worked late last night / early this morning, so the NPR overdose is all running together. Good to know that Steven Insky hasn’t resorted to tabloid journalism like Meeeechelle Norris and Melissa Block yet…

“It’s unclear what, if any, discipline Kozinski could face.” Mhuh?

NPR even gave its cute little disclaimer that the descriptions of J. Kozinski’s website might be offensive to some listeners.

11 Bul S 06.14.08 at 2:11 am

Per cyanide: “Third, the stuff posted on Patterico is the mild content.” Then what is the “hardcore” stuff you are talking about? You better put up or shut up.

12 Walter Olson 06.14.08 at 11:47 am

One of the big problems here is the L.A. Times coverage, which has described the images in language of perhaps studied ambiguity (“sexually explicit photos and videos”) so as to make them sound like kinky porn intended for, well, for the purposes for which men are known to use porn. Jesse Walker at Reason has a much more specific description: “It seems Kozinski has been accumulating viral Internet humor, some of it X-rated but none of it any less mainstream than a Farrelly Brothers movie.” Wonkette: “the sort of naughtiness you’d find in the dirty birthday cards section at Spencer Gifts”. A different story, to say the least. Not long ago, before the rise of blogs, the L.A. Times version of the story might have been the only one out there.

13 Ron Miller 06.14.08 at 11:50 am

That Halloween costume depicts child porn, just like making up adults to look like children still makes it child porn. I find frustrating the efforts to bundle this all up under the umbrella of “bad sense of humor.” And the notion that he did not realize their would be public access to it, is their a eleven year-old in the country that would not understand the concept?

I’m largely backing off my impeachment view which was probably an extreme reaction from a Catholic with three kids. But we can’t just chalk it up to embarassing either. Something is distrurbing about the guy, as jbd (otherwise a supporter) points out above.

14 Cyrus Sanai 06.14.08 at 2:54 pm

I have mailed a CD of what I have to Patterico at Patterico .com, and he can put up what his ISP will let him get away with. The LA Times found more recent items I don’t have.

On the Catholic side, I gotta point out that Judge Kozinski has some pronounced attitudes towards it. There are only two religions which are the focus of his humor content: Judaism (a lot of standard Jewish self-mockery, nothing that would be out of place on primetime) and anti-Catholic stuff, focusing on child-abusing priests and beer-swigging popes. Hostility to Catholicism is a feature of a lot of Jews with family lost in the Holocaust, who believe–rightly or wrongly–that the Church stood by silently while Jews burned in Auschwitz. I therefore am not surprised by it.

15 Ted Frank 06.14.08 at 3:20 pm

The idea that Judge Kozinski is an anti-Catholic bigot would be a remarkable surprise to the numerous Catholic clerks he has had, including Notre Dame law professor Jennifer Mason, who serves on the board of Catholics in Alliance for the Common Good, and Greg Kennedy, Justice Kennedy’s son. Sanai is again smearing the judge in revenge for his own failed frivolous litigation.

16 Larry Reilly 06.14.08 at 5:21 pm

Ted,
Try considering just one picture in the bunch Cyrus Sanai downloaded from Kozinski’s readily available collection and now avalable at Petterico’s blog: A man fellating himself.
I expect that if 12 members of some community in the U.S. were forced to sit on pew-like benches in a boxed-in area in a courtroom and pass judgment on that one published photo — and it would be by legal definition published if someone downloaded it from Kozinski — those jurors very well might convict on an obscenity charge.
Also, the availability of copyrighted mp3s for download is a hotly contested legal issue at present, including in the 9th Circuit.
Here is Kozinski presiding over an obscenity trial, in which jurors are deciding whether something is obscene to them, as represenatives of their community. He also, at least until this week, has or had some likelilhood of sitting in judgment again on copyrighted file sharing issues.
As I commented elsewhere today, if Cyrus Sanai didn’t exist, all this other stuff still would.
I don’t know the guy, but every time I see name calling and finger pointing in this matter — e.g. your point about how it would be appalling if Konzinski were disciplined before Sanai is — I feel like I’m at a magic show and someone is trying to get me to look at a waving handkerchief rather than at a finger slipping up a sleeve to snare a coin.
There are facts and issues here quite separate from anything anyone chooses to say about the quirky good-guy brilliance of Kozinski or the demented low-life scumminess of Sanai.

17 Ron Miller 06.14.08 at 8:49 pm

Some of my best friends are Catholics? Oh, that defense is fine. Actually, I really was not accusing him of being anti-Catholic. Again, Ted, I’ve turned on the impeachment thing. I hope you turn on your “what’s the big deal?” response or your blaming the accuser. Mr. Sanai, sounds like someone – all due respects if you are reading this – who needs to get a life. But that does not change that this judge is more than just a guy with a bad sense of humor. (If you don’t because you are a loyal friend, I’m cool with that!)

18 Patterico 06.14.08 at 9:01 pm

“Second, you should more carefully read Patterico?s posts. He too was initially hostile, but now agrees with me that Kozinski has a very serious problem with file-sharing and copyright violations.”

I wouldn’t put it quite that way.

I think the fact that Kozinski’s site shows up on Google in hits to .mp3 sites is extremely relevant to the question of how Mr. Sanai found the site. As he says, he found it through a simple Google search. Larry Lessig, in my opinion, is doing Mr. Sanai a real disservice by comparing Mr. Sanai to a hacker. A hacker? He did a Google search. He entered the directory into his address bar. These are not the actions of a hacker, and Lessig damn well should know better. His post has the feel of an academic circling the wagons.

At the same time, the LAT has done Judge Kozinski a grave disservice, bordering on libel, by suggesting that a humorous video of an aroused donkey chasing a man is really a man “cavorting” with a barnyard animal. Good God, the SF Chronicle actually read that as a claim that Kozinski’s site featured “images of bestiality”!

As to the .mp3 file sharing, that may be significant and it may not. The answer depends on facts to which we don’t know the answer. I initially thought we could have a case of hypocrisy, as Kozinski seemed to take a hard-line position on file-sharing/copyright in the Perfect 10 case. But Xrlq has convinced me that if the judge had rendered an inaccurate but self-serving opinion on that issue, it would hardly be better. I think the jury is out on that question, and I’m not inclined to be a scold about it. I’m not even sure sharing one’s files with others is illegal.

19 Cyrus Sanai 06.14.08 at 11:56 pm

I want to point out here that I don’t think I downloaded the donkey thing. If I did, it was one of the files that did not work on my Mac. I don’t think there was any suggestion of bestiality by Glover; it’s just a very, very strange thing.

As for the Catholic issue, Judge Kozinski can no doubt separate his dislike for the religious institution from individuals who profess the faith. I would not want to suggest that Judge Kozinski dislikes believers in the Catholic faith; I don’t think for a moment that he does, and if my previous post suggests that he does, I want to clarify that it was not my intention. He’s not that kind of guy.

What I perceive is a definite dislike for the institution of the Church, however. If I were a Catholic priest, or representing an institution of the Church, I would not want him judging my case. I think the material on his server was very relevant to lawyers who represent the Church or its officials.

20 Patterico 06.15.08 at 1:33 am

“I don’t think there was any suggestion of bestiality by Glover; it’s just a very, very strange thing.”

I think Glover’s description did indeed suggest bestiality, and it led the SF Chronicle to say that Kozinski’s web site featured images of bestiality. From what I know of the contents of the site, that is an outrageous smear. And it originated with Glover’s overly sensationalistic description.

21 Miss Havisham, bitter anti-bride 06.15.08 at 2:31 pm

I’d like to see the LAT go after some of the real purveyors of the REAL pornography and snuff–those are not just some judges, lawyers…but they are people that are fiercely guarded because they know they have something to worry about. An actual crime!

A judge said this to me: One does not protest too much to a temporary restraining order if they haven’t done anything that would warrant a permanent one.

22 Miss Havisham, bitter anti-bride 06.15.08 at 2:35 pm

correction to my comment: The “o” in order should be capitalized. That makes it a 101 course.

23 Patrick 06.15.08 at 5:09 pm

Cyrus, shut up already. You’re part of the story not part of the commentariat, and no one has brought up anti-Catholicism except you.

If you want to address part of the story, how about addressing the other Overlawyered discussions about your history of abusive litigation and frivolous pleadings, and that Judge Kozinski is hardly the only judge to have dragged you over the coals for this misconduct.

24 fishbane 06.15.08 at 8:00 pm

Cyrus, shut up already. You’re part of the story not part of the commentariat, and no one has brought up anti-Catholicism except you.
If you want to address part of the story, how about addressing [...]

It is rather bizarre to ask “a part of the story” to shut up and simply sit by and be commented on, but completely bizarre to then ask them to write on other topics presumably of interest to the commenter demanding silence.

Somehow I hear echos of someone dissatisfied at a concert because the lead act didn’t play “Freebird” long enough, or maybe voiced a political opinion that didn’t settle well.

25 kwh 06.16.08 at 12:21 pm

jbd says:

“But he defended his position [pro-death penalty] by launching into extremely graphic and grotesque descriptions of torture and murder of children by pederasts. It was weird and kind of spooky.”

What’s really weird and spooky is for someone to view the citation of a perverse and grisly murder as a non sequitur when arguing for the death penalty.

But jbd doesn’t stop there: She takes a step into the realm of mind reading and evidence invention: She pretends to be able to look into Kozinksy’s mind and finds nothing but prurience: You see, Kozinsky wasn’t saying “here’s a case where the extremity of the crime cries out for the death penalty”. Oh, no, no, no: Kozinsky gets excited from such stories!

26 Mitch 06.21.08 at 4:20 pm

Cyrus Sania has some valid points on the 9th Circuit, and Kozinski’s pathetic attempts to gloss over his problems, it only underscores them even more
In the case of U S ex rel Fine v Chevron, Kozinski with S Trott, formed some cult of hate, concocting names for Harold Fine, other than who he was, in an exercise so devoid of judicial ethics, it warrants full Congressional Investigations. Google it, Fine Cheveron Trott. Read the opinions of Trott and Kozinski.
When the 3rd Circuit reveiws Kozinski, and writes, if it used the Trott/ Kozinski standard, it would refer to him as The Larry Lynt of L A DARK Chambers, use 4 or 5 other names, not his real name, some with a tinge of demonic anger, and note hate again, then tell all “imagine”, then concoct some lies, some fabrications, then go back to the French Revolution, to fling into the rulings, and note the first to be hanged, or gullotined. You laugh.. / Read the subject opnion noted, it is not a laughing matter that is EXHIBIT NO 1–the Kozinski problem. It illustrates serious problems in the 9th Circuit, and Kozinski is at the heart of them

27 Ted Frank 06.21.08 at 11:57 pm

I hereby link to the eminently reasonable decision in Fine v. Chevron (9th Cir. 1995), which is consistent with the federal government’s reading of the False Claim Act in its amicus brief in that case. Not clear to me why Mitch is still incoherently bitter about this case 13 years later.

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