WASHINGTON, D.C.—Judge Richard J. Leon, who presided over the John Stagliano obscenity case and made a "Rule 29" ruling of acquittal on all charges after the prosecution rested its case, has now issued the final versions of two rulings he had made from the bench during the trial: one on his refusal to allow two defense witnesses to testify, the other reflecting his ruling that neither side be allowed to play the charged movies fully for the jury.
In Judge Leon's Memorandum Opinion regarding proposed expert witnesses Dr. Lawrence Sank and Dr. Constance Penley, as well as the prosecution's proposed rebuttal witness Dr. Chester Schmidt, the judge first recounts the Miller test for obscenity, and notes that neither of the defense witnesses had ever been previously qualified by a court to testify as to any of the test's three "prongs."
According to the opinion, Dr. Sank, a clinical psychologist, was "expected ... to offer an expert opinion that, in light of the community standards here in the District of Columbia, the works charged in the Indictment neither appealed to the prurient interest nor were patently offensive and that, taken as a whole, the works did not lack serious scientific value," while Dr. Penley, a professor of film studies at UC-Santa Barbara (where she has taught courses in the history of adult films), was "expected ... to offer an expert opinion that the works, taken as a whole, did not lack serious artistic value."
As reported in AVN's trial coverage on this matter, Judge Leon first noted that in the classic obscenity case of Paris Adult Theatre I v. Slaton, Chief Justice Warren Burger, writing for the court's 5-4 majority, opined that when it comes to obscenity, the films themselves "are the best evidence of what they represent," and that "the task of judging whether a particular film is obscene 'is not a subject that lends itself to the traditional use of expert testimony' ... Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand [but] [n]o such assistance is needed by jurors in obscenity cases." [Citations omitted here and below.]
Having established, then, that the use of expert testimony is entirely within the trial court's discretion, Judge Leon launched into a discussion of Federal Rule of Evidence 702, which governs expert testimony, and is based largely on the 1993 Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, which "established a framework to guide trial courts in performing their 'gatekeeping' function."
"Under Daubert," Judge Leon wrote, "if a party proffers expert testimony that is scientific in nature, it is admissible only if the trial court concludes: (1) that the reasoning or methodology underlying the testimony is scientifically valid, and (2) that the reasoning or methodology will assist the trier of fact to understand or determine a fact in issue."
The court had held a "Daubert hearing" on the two defense witnesses on June 24, and most of the factual basis of Judge Leon's opinion was derived from that. Regarding Dr. Sank, the court recounted the testimony that, as the defense team had claimed, because the doctor provided therapy to patients regarding, at least in part, their sexual problems, he could testify on the community standards regarding its acceptance of sexual materials in the District of Columbia area—but the court was not convinced.
"If anything, his opinion would have been distorted, and potentially misleading to the jury, because it would have been based entirely on his interaction with people who come to him for treatment thinking that they have a psychological problem or a particular sexual problem and are willing to speak openly about it," Judge Leon opined, ignoring the fact that the average person does not discuss his/her sexual thoughts at all with his/her friends and neighbors. "In addition, Dr. Sank, by his own admission, sees a clientele comprised largely of college-educated or upper middle class persons who can afford his rates ($300 per hour) or who have the necessary insurance coverage to have his fees reimbursed. In short, had Dr. Sank been allowed to testify, his opinion would not have been grounded on a fair and accurate cross-section of the community, nor could it have been given the nature of his clinical work."
The judge also dismissed Dr. Sank's expertise in the "scientific value" of the charged films, though he noted that the doctor's treatment of "patients who have a diagnosable paraphilia by having them watch films from his personal film library or from the Internet depicting others performing the sexual acts that define the paraphilia." However, the judge further noted that Dr. Sank had testified that while no one in the therapeutic community would call his treatment "unethical," there was also not a general consensus that the use of such films for therapy was a "generally accepted practice in his field."
"Dr. Sank effectively admitted, for instance, that he had never published any books or articles subject to peer review about the clinical use of adult films for the treatment of paraphilias ... [n]or was there anything in the record indicating that Dr. Sank had undertaken the rigorous process, grounded in the scientific method, of systematically testing whether his method of treatment was actually effective," the judge ruled.
Next, the judge turned to Dr. Penley, first noting that, "[b]ecause artistic inquiry, by its very nature, does not lend itself to the same sort of objective analysis and testing as scientific inquiry, I looked to other indicia to evaluate the reliability of her proposed expert testimony."
"Notwithstanding her impressive credentials as a professor of film studies in general and of feminist art theory in particular," JUdge Leon wrote, "my examination of Prof. Penley's testimony from the Daubert hearing raised serious doubts about the reliability and helpfulness of her opinion testimony. When asked, for instance, whether she had ever written or lectured on the serious artistic value of 'hard core' pornography—that is, films showing actual depictions of repeated sex acts, some of which are generally regarded as paraphilias—Prof. Penley acknowledged that she had not. When asked whether she was familiar with others in her field who had written on the serious artistic value of 'hard core' pornography, she could only think of one person, but she averred that, to date, that person's article had merely been accepted for publication in a peer-reviewed journal. She was
unclear about when the article would actually be published and thereby subjected to the scrutiny of peer review." (Note: The "peer review" of peer-reviewed journal articles takes place before publication.)
Between those admissions, and other testimony that the judge found to be "elusive," he ruled that her claimed expertise as far as Miller's third prong was unacceptable.
"Prof. Penley's methodology—what little can be gleaned from it—is so nebulous, subjective, and lacking in rigor and detail as to cast serious doubt, not only on the reliability of her opinion testimony, but on its usefulness to the jury as well," the judge wrote, apparently failing to realize that the question of whether any work is obscene is entirely a matter of (subjective) taste. "After all, the more subjective her mode of analysis, the less need the jury would have for an expert with her background. Here again, I am persuaded by the admonition in the advisory committee's note for Rule 702 that the 'more subjective and controversial the expert's inquiry, the more likely the testimony should be excluded as unreliable.'"
With both experts excluded, the court had no reason to delve into Dr. Schmidt's qualifications—and didn't.
The second—and likely more important—ruling that Judge Leon memorialized today in a Memorandum Opinion was on the question of whether the entire charged movies—Milk Nymphos and Storm Squirters 2: Target Practice—could be "published to" (played for) the jury, and who would do so.
"As grounds for their initial Motion in Limine, the defendants contended that the 'as a whole' requirement of the obscenity test announced by the Supreme Court in Miller v. California, required the government to show each work from beginning to end to satisfy its burden of proof," the judge wrote. "The defendants argued that, unless the government played the entire films to the jury in open court, there would be no 'guarantee' that the jurors would actually view the films in their entirety and thus be able to judge them as a whole. Because jury deliberations are generally considered to be sacrosanct, the defendants stressed that 'the only way to truly ensure that the jury has viewed the material as a whole would be to require the jury to view the material in open court.' A conviction in which the jury failed to view the films in their entirety would, according to the defendants, violate their First Amendment and due process rights, since those films cannot be adjudged obscene without evaluating the prurient appeal and serious literary, artistic, political, and scientific value of the films, taken as a whole."
But despite the obvious correctness of the defense view on the issue, Judge Leon claimed their argument "rested on a non sequitur."
"Central to the defendants' argument was the premise that jurors cannot properly judge a work as a whole unless they view it in real time from beginning to end," Judge Leon stated. "Common sense tells us, however, that a juror need not view every frame of a film or, for that matter, every word of a book or every page or picture in a magazine in order to determine whether a given work, taken as whole, appeals to the prurient interest and lacks serious literary, artistic, political, or scientific value."
"Indeed, the notion that a work need not be viewed in its entirety to be appraised as a whole is entirely consistent with the logic behind the 'as a whole' requirement," the judge continued. "It is clear from Miller and the cases leading to it that the Supreme Court sought to prevent the government from introducing only those portions of a work that, it believed, appealed to the prurient interest or lacked serious literary, artistic, political, or scientific value without giving the jury access to the remainder of the work so that it could evaluate the questionable portions in their proper context. To criminalize an entire work based solely on isolated excerpts taken out of context would, of course, stifle the free expression that the First Amendment was meant to foster," he added, citing the Supreme Court's decision in U.S. v. Roth.
But even though, in Roth, the high court spoke approvingly of a jury instruction that "[t]he books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion," Judge Leon saw some wiggle room in that holding.
"The juror's task, therefore, is to view the potentially obscene parts of the work in their proper context and, in so doing, to judge whether the work appeals to the prurient interest and whether it lacks serious literary, artistic, political, or scientific value," the judge wrote, referring to the Eleventh Circuit's unpublished opinion in U.S. v. Little (Max Hardcore). "Each individual work must be considered as a complete work, not based on isolated portions taken out of context. But that task in no way requires the juror to view every bit of a work. Repetitive sexually-explicit portions that neither alter the determination of a work's prurient appeal nor add some plausible literary, artistic, political, or scientific value are entirely irrelevant to the 'as a whole' analysis."
Averring that he wasn't surprised that the defendants couldn't cite a single case where a court had ruled that a jury was required "to watch every frame of a movie or read every word of a book or view every page or picture in a magazine to satisfy the 'as a whole' element of the Miller test" (probably because every court before his understood "as a whole" to mean exactly that: "as a whole"), Judge Leon explained why, for him, "whole" doesn't mean "whole."
"After all, the jury's duty is to ensure that whatever portions of a given work are thought to make the work obscene are judged, not in isolation, but in the context of the larger work," the judge reasoned. "But to put those portions into context does not necessarily require that the jury view the entire work from beginning to end. The jury may rely, for instance, on summary testimony from witnesses who have viewed the remaining portions of the work and are subject to cross-examination. ... To provide context, the jury may also rely on other excerpts from the work that either the government or defense presented at trial or that the jury itself viewed during its deliberations."
The judge also wrote approvingly of another unpublished opinion, this time the Fourth Circuit's ruling in U.S. v. Loren Jay Adams, where that circuit found that the government's simply playing excerpts from the charged works and allowing an FBI agent to summarize the portions not played would be acceptable under Miller.
But at that point, Judge Leon's opinion goes off the deep end.
"The defendants' concern about the inviolability of the jury deliberation process is, to say the least, overblown," Judge Leon claimed. "It is no per se violation of the defendants' First Amendment and due process rights if the jury deliberates for less than the amount of time it would take to view all three films from beginning to end in real time. For reasons that I just explained, Miller does not require that the jury view every frame of the charged films, nor does it require that the jury view each film in real time. Indeed, it would be acceptable as a constitutional matter for the jurors to fast-forward over whatever portions of the film they have reason to believe contain gratuitous and repetitive sexually-explicit activity that bears little relation to the plot, or that is unnecessary to understand the meaning of the film. So long as the Court properly instructs the jury on the legal requirement that they judge the prurient appeal and literary, artistic, political, and scientific value of the film, taken as a whole, by considering whatever portions of the film are shown at trial in their proper context, the jurors are free to evaluate the evidence in any manner they wish in accordance with those instructions." [Emphasis added.]
Judge Leon also claimed that the defense was in no way prejudiced by forcing them to choose between playing whatever portions of the charged movies the prosecution didn't play, or not playing them and risking a higher court ruling that the defense had the opportunity to "complete the record" but didn't.
"After all, if the defendants play additional samples of the films as part of their case-in-chief that add context favorable to their case or that demonstrate, for instance, the artistic merit of the film not otherwise evident in the government's samples, then the defendants will obviously benefit," he opined. "That is hardly a 'no-win' alternative. Indeed, it is a potentially winning alternative to the extent that it strengthens the defendants' case."
And while the judge also rejected the defendants' motion to be allowed to play whatever portions of the charged movies they wished—including possibly all of the footage not played by the prosecution—in order to rebut the government witnesses' testimony, "I do not disagree that the defendants may show portions of the films that they can demonstrate are needed to cross-examine the government's witnesses or to establish their defense," he ruled. "The defendants do not have, however, a categorical legal right to show in open court the entirety of the charged films."
"The defendants took a particularly aggressive position regarding the procedural approach to the trial of this case," the judge concluded. "In effect, they argued that a film—no matter how long or sexually explicit—must be shown to the jury in its entirety in open court to ensure that the jury satisfies Miller's mandate that the film be 'taken as a whole' to determine whether it appeals to the prurient interest or lacks serious literary, artistic, political, or scientific value. Implicit in their argument is the flawed premise that a work must actually be viewed in its entirety in order to be judged fairly as a whole. In short, the defendants erroneously conflated the task of reviewing a film from beginning to end in real time with the task of judging the film as a complete work. Because the former is not necessary to accomplish the latter, I rejected the defendants' argument and accordingly denied both of their motions."
That ruling certainly flies in the face of the spirit, if not the actual holding, of the Supreme Court's Miller decision, and had the case gone forward and ended in a conviction, Judge Leon's ruling certainly would have formed the basis for a major challenge to the conduct of the trial. Fortunately, that won't be necessary—but this decision should serve as a warning to future defenders of allegedly obscene works that at least one district court judge thinks "whole" doesn't mean "whole."