A Kozinski Clerk Tells Her Story

A Kozinski Clerk Tells Her Story December 17, 2017

Heidi Bond, a former law clerk for Judge Alex Kozinski who now writes romance novels under the name Courtney Milan, has told her long and sordid tale of interacting with him and the harassment she tolerated. She was one of the original accusers published by the Washington Post, but the details she adds to the story are important for many reasons. First, the kind of thing he did:

AlexKozinski

“Heidi, honey,” the Judge said one day, when he’d beeped me into his office alone, “you’re the computer clerk. I need your opinion on something.”[1]

I was the computer clerk because I’d worked in a computer store, built several computers, run my research group’s computer cluster in graduate school before I went to law school. Once, being the “computer clerk” meant a software consult. Once, he’d shown me his own self-built computer that he’d brought into the office for emergency surgery.

This time, the thing he needed an opinion on was a set of pictures. He pulled them up from where he had saved them—a private server, run by his son, that he used as a massive external hard drive. Those pictures showed a handful of naked college-age people supposedly at a party where other people were clothed and drinking beer. In one of those photos, a man and a woman were sitting naked on a couch.

“I don’t think your co-clerks would be interested in this,” he said. “Do you think this is photoshopped?”

At the time, I didn’t know what to say. I remember thinking that I didn’t want to be there, not without my co-clerks. It would have felt entirely different if my co-clerks—both male—were present; it would have felt like I was being treated as one of the guys. Kozinski was not known for being terribly appropriate, but I could handle that. Inappropriateness directed solely at me felt very different than chambers-wide jokes.

His office in Pasadena overlooks the Colorado Street Bridge, more colloquially known as Suicide Bridge. I remember feeling like the sounds of the cars passing were very loud. I remember wanting to be so small I could disappear.

“Yes,” I said. “It’s photoshopped.”

I remember pointing out how the couch didn’t compress where the naked people were supposedly sitting, how the shadows weren’t right compared to the clothed party-goers. I tried to stay as factual as possible.

“Does this kind of thing turn you on?” he asked.

“No.” I remember feeling that I needed to not move, either physically or emotionally, that if I just treated this like this was normal it would stay normal and not get worse.

“Why not?”

“They don’t look like they’re having fun.”

“It doesn’t do anything for me either,” he replied. “People just send me these things. I don’t know why. But I like to keep them as a curiosity. I don’t understand why people find this sort of thing arousing.”

It happened at least three times. I can’t remember exactly how many times it happened.

I was also alone the day he showed me what he called his knock chart. It was a typed piece of paper listing all the girls that he and his friends had banged while they were in college, tracking their conquests.

“Don’t tell your co-clerks about this,” he said. “It’s not something I want them to know about.”

Is there really any question what was going on here? He didn’t want to know if the picture was photoshopped, he just wanted to see if he could get her turned on and interesting in having sex with him. Many of his other female clerks tell very similar stories. And then there’s this:

But over the course of the clerkship I learned very swiftly how impossible it was to say no to the judge.

As an example, one day, my judge found out I had been reading romance novels over my dinner break. He called me (he was in San Francisco for hearings; I had stayed in the office in Pasadena) when one of my co-clerks idly mentioned it to him as an amusing aside. Romance novels, he said, were a terrible addiction, like drugs, and something like porn for women, and he didn’t want me to read them any more. He told me he wanted me to promise to never read them again.

“But it’s on my dinner break,” I protested.

He laid down the law—I was not to read them anymore. “I control what you read,” he said, “what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”

There was nothing to say but this: “Yes, Judge.”

That’s just creepy, that he thought he had the authority to tell his clerks what they could read on their own time (though I doubt he ever did that with a male clerk). But here’s the real problem: She felt constrained all these years from talking about it because of the idea of judicial confidentiality. What is said between a judge and their clerks is generally considered to be confidential so that all are allowed to be candid in offering their analysis of a case.

She quotes an article written by Kozinski in which he said that a clerkship “is not simply a job, a great honor, or a stepping stone to plum jobs in the legal profession—it is membership in a family, with correlative rights and responsibilities…. The clerk has a duty of diligence, loyalty, and confidentiality, both to the Justice who appoints him and to the other Justices. He also has a duty of loyalty to his fellow clerks and to other Court employees. In exchange, the clerk gets to work in the headiest environment to which any young lawyer could aspire and enjoy the luxury of open, robust, and unbridled debate about our nation’s most pressing legal issues….” And on her last day as a clerk, he seemed to offer her a veiled threat based on his view of this matter, telling her that “the beauty of judicial confidentiality was that it went two ways. As long as I never, ever told anyone what had happened in chambers with him, he would never tell anyone what had happened with me.”

But then, nine years later, he sent her an email asking her to speak to a reporter about her experiences as one of his clerks. She had been operating under the assumption that there was very little she could ever say publicly about that because of his expansive view of judicial confidentiality, but now he was inviting her to do so, apparently thinking she would give him a glowing review. That is what prompted her to come forward, but first she consulted several other judges about the confidentiality issue:

On the advice of two friends, I spoke to several people in the federal judiciary—first, Jeffrey Minear, Counselor to Chief Justice Roberts, then, at his referral, to Judge Scirica of the Third Circuit, in his capacity as the chair of the Committee on Judicial Conduct and Disability.

I wanted to know if I could tell some of those details to my husband, a therapist, or some close friends.

I want to be clear that Judge Scirica was warm, understanding, and kind. He also insisted that I not tell him any facts of the situation. I believe the reason he gave was that since the question was whether judicial confidentiality applied, there was no way to give specifics without potentially breaching confidentiality.

Initially, he told me that if what had happened was a matter of personal misconduct on the part of the judge, that I was not bound by the code of chambers confidentiality, and that whatever I needed to do for my own closure and healing was fine, so long as it wasn’t about a judicial matter.

That’s where I paused. “What,” I said, “if it’s not about a matter that my judge decided, but if there’s a nexus of facts that are relevant to another judicial matter? What if there’s a nexus of facts between what I want to talk about and the matter that arose from US v. Isaacs?”

Here I must digress. The porn the judge showed me was stored on his personal server, a computer in his house that he left entirely unsecured. A year after I left, a disgruntled litigant discovered the existence of this server, and, in light of the images on it, Kozinski asked that an official ethics investigation be made into his conduct.

A pause. “I know something about that matter,” Judge Scirica finally said. I knew he did. He’d written the opinion that ultimately exonerated Kozinski in that investigation. I had done my best to pay as little attention to the matter as possible.

“What then?” I asked.

It took him a while to think this through. Because of that investigation, the only way that he could tell me if the matter was covered by judicial confidentiality was if I told him the facts of the matter, but there was a possibility that the matter was covered by confidentiality, in which case I could not tell him.

I wrote down his next sentence, and so this is a direct quotation: “I cannot think of any person, persons, or institution that can give you an answer on this,” he said.

On the advice of another friend, I directed the same question to the chair of the Committee on Codes of Conduct, and was given the same answer.

Well I could give her a clear answer: Hell yes, it was okay to come forward and not in any way a violation of any legitimate ethical principle. Judicial confidentiality is important for candor when discussing a case, it’s not a means of silencing criticism. The one who violated professional ethics here was Kozinski, not her, and she had every right to blow the whistle on him. If judicial ethics requires covering up misogyny and harassment by a judge, there is no sense in which the word “ethics” belongs in the conversation at all.

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