STAUNTON, Va. — Prosecutor Raymond C. Robertson is employing a unique strategy in seeking felony convictions against first-time defendant Rick Krial and his company, LSP of Virginia (dba After Hours Video), and possibly also against recently-indicted clerk Tinsley W. Embrey, and defense attorney Paul Cambria isn't going to let him get away with it.
"I haven't seen the charges against Embrey yet, but my guess is they're both [misdemeanors and felonies], because that's how he did it with the company," Cambria told AVN. "It's ridiculous, because the statute says that if you have a prior, then the next one becomes a felony, but here what they've done is, they've charged him with ten counts, and after the first one, they say all the rest are going to be felonies. I said, 'Well, that's preposterous,' and then they produced these cases in Virginia which exactly stand for that proposition, so we're going to revisit that issue. We may even challenge it federally, and that's what I mentioned to my guys before I asked Lou to come in, because it's ridiculous. After you've been convicted, if you keep doing it, then it ought to be enhanced. It shouldn't be the other way around."
The "Lou" Cambria refers to is H. Louis Sirkin, another prominent First Amendment attorney with whom Cambria has worked in the past, most recently on the Free Speech Coalition's lawsuit in Colorado against the federal recordkeeping and labeling law, 18 U.S.C. §2257.
"I'm looking forward to trying a case with Lou," Cambria said. "We haven't done that in a while, so I'm looking forward to it. We're going to have a good time."
It is unclear whether the tactic of "enhancing" obscenity charges pre-conviction is the brainchild of Robertson or of DOJ Obscenity Section attorney Matthew Buzzelli, who has been in contact with Robertson for the past two months, and who will serve as co-counsel during the proceedings.
What is not in dispute is that it was at the Justice Department's behest that Robertson sought the indictment of Embrey, the clerk who apparently was present when police purchased the videos in question which led to the indictments.
The videos at
issue in the case include Sugar Britches
(BackEnd Prods.), Video Adventures of
Peeping Tom (Odyssey Group Video), Tag Teamed 3
(Zero Tolerance), Teanna Kai Is The Bitch
(Baby Doll), 5 People You Meet In Porn
(Hustler), Big Loves – Thick For Dick
(Third Degree), Teen Angel – The Search
For Snatch (Elegant Angel), Teens
Cumming of Age 4 (Platinum X), Erotica
(Sin City), A Group Thing 1 (Red
Light District), Hog Farm (Big Top
Video) and City Girls – Extreme Gang
Bangs (producer unknown).
"My guess is, this guy is just trying to put the heat on [Krial], maybe intimidate his workers into not working or something like that; who knows?" Cambria said of the Embrey indictments. "I feel that it is an intimidation tactic; the design here is to intimidate the employees and put a financial burden on the company [using] the power of the government."
We asked why Robertson felt the need to have outside federal co-counsel, considering that his first move in the case was to attempt to exclude Cambria from representing any of the parties.
"I don't know what it is," Cambria admitted. "I think the local guy just feels that he needs to have some help because he's never handled one of these before, but from our standpoint, the jury shouldn't be informed that this is a person who's regularly working for the Justice Department because they're going to attach undue significance to that. There are no federal charges here and frankly, it's questionable as to whether or not you should be able to do this, but my feeling was, he moved to admit this guy pro hac [Latin: "for this occasion"] – you remember, he's the guy that tried to exclude me, and I just said, 'Bring it on! You can bring in the attorney general; I don't care.'"
The prosecution has already filed several pre-trial motions in the case; Cambria will file defense motions on Jan. 29, and the attorneys will argue them all in court on March 6.
"Our motions will deal with whether you can enhance a misdemeanor to a felony before there's ever been a conviction, obviously," Cambria detailed. "It will deal with, we do not want the jury to be informed that his co-counsel is with the Department of Justice or that I'm not from Virginia because it's totally irrelevant. We're going to be asking that all the offenses be tried at one trial, because he was talking about ten separate trials, which is nonsense, and things like that. We're going to ask that the community standard be at minimum a statewide standard, whereas they're going to say it should be the head of a pin."
As for the prosecution motions, Cambria described them as "the usual voir dire stuff."
"Their motions are the usual canned motions that really have no application to guys like me who know how to try these cases," Cambria stated. "I don't know who came up with these motions or who they were trying the case against, but we don't make the arguments they're trying to prevent us from making. And so, like for example, you can't argue to the jury that obscene material shouldn't be found guilty because it went to consenting adults. We don't make that argument. We make the argument that one of the ingredients in determining whether something is obscene is whether it was made by and distributed to consenting adults. That's different than saying after it's already found obscene, you should nevertheless acquit it because it went to consenting adults. We don't make that argument. If you think about it, if you articulate it correctly, what the government wants to do is stop us from discussing consenting adults altogether. We litigated that issue specifically in federal court in the past, and they agreed with me that I could make that argument and I did.
"They're also trying to exclude us from asking the jury, 'Are you so offended by this' – 'are you too offended by this?'" Cambria continued. "I don't ask that question. What I ask them is, 'Can you watch movies from one end to the other that include the following ...?' And I need to know that because part of their job is to consider them as a whole. If they say they can't, then for whatever reason they can't, they can't sit on the jury. And what they want to do is stop me from asking the jurors whether they could watch movies like this, because the ones who are going to go, 'Oh, no way, I could never watch them,' they want to keep them on the jury. Obviously, my position is, 'Judge, if they can't watch them, they can't judge them.' And you see, they twist it a little bit. But you can find the motions that he filed online; they're stock government-guide motions."
Cambria expects the case will go to trial sometime this summer.