STAUNTON, Va. – It's a constitutional right that defendants in criminal cases are entitled to the assistance of counsel, but according to prominent First Amendment attorney Paul Cambria, Virginia prosecutor Raymond Robertson is attempting to deny retailer Rick Krial of his attorney of choice: Cambria.
Robertson is prosecuting Krial and his business, After Hours Video (legal name: LSP, Inc.), on 24 counts of alleged obscenity; two charges for each of the 12 DVDs confiscated by police shortly after Krial opened the business on Oct. 7.
In fact, it was the opening of After Hours that apparently inspired the town, which had previously had no such businesses, to pass two ordinances on Nov. 8: One to establish a permit application process for all adult businesses which currently or in the future might want to locate in Staunton, and another which would require that all future such businesses locate at least 500 feet from residences, schools, churches and daycare centers.
And now, Robertson has filed a motion with the Staunton Circuit Court to exclude Cambria from Krial's defense team, but Cambria contends that that motion is heavy on speculation and light on evidence.
"I don't think he's alleged enough factually to even legally raise the issue," said Cambria, "I think he should allege facts before the court could compel me to discuss whatever my arrangements were. I don't think he can simply ask us, just for the asking, what our relationship is with a client or what our arrangements are with a client. They have to allege facts to raise an issue, and they haven't done it. They're just guessing. And if he does or can, which I doubt, the answer is still 'no' on my part; I don't have a conflict. He would need to demonstrate that there was in fact another defendant or a potential defendant, and that I represented him, for one thing, and the fact that an attorney might be paid by somebody else, which I'm not, is not enough to trigger a conflict anyway. It happens all the time, but it doesn't even apply here. It's just not true: I'm not being paid by anybody else."
It is not uncommon for both a retailer and a video producer to be charged with obscenity for having sold and/or manufactured a particular video feature, but that was not the case here. Cambria told AVN that he had been informed by Tate Love, Krial's local counsel in Virginia, that Robertson had intimated that he might consider reducing or dismissing the charges against Krial if Krial would agree to testify against some unidentified third party, but no such agreement was ever consummated.
"Even if I were being paid by someone other than my client, it's still not a conflict unless the person paying the fee is also a defendant — and there are no other defendants — and unless they have adverse interests," Cambria explained. "He hasn't alleged that and it isn't true. And for him to say, 'I might be trying to make a deal and go after somebody else,' he hasn't made a deal and gone after anybody else. He could attempt to do that, and he has, and it's failed, and as far as I know, he hasn't identified anybody who he would target in any event."
Could Robertson attempt to amend the indictment to include another defendant, someone who Cambria has represented in the past?
"I suppose he could," Cambria replied, "but it would have to be somebody that I would represent in this same case, and the worst that would happen is, if he named somebody who wanted to have me be their lawyer, I wouldn't be able to be their lawyer because I've already signed to be this guy's lawyer, so it wouldn't matter anyway; they would have different counsel."
According to a report in the Staunton News-Leader, Robertson has argued that "if Cambria and his associates are being supported by the porn industry, based on past case law Krial will have an argument for appeal if convicted," and that "any plea agreements favorable to Krial would conflict with the interests of a third party from the porn industry."
"That's nonsense," Cambria retorted. "There are all sorts of machinations that one could imagine, but the thing that's important is, they first have to allege something more than mere raw speculation, and that's all that it is right now, that I would represent somebody in Porn Valley who's a distributor. Well, they haven't charged anybody. And they claim that that person might influence me? Well, he [Robertson] might be influenced by the Religious Right to prosecute my client in the first place. Does that disqualify him? Maybe they contributed to his campaign; does that disqualify him? And you can bet that if you looked at the contributions that that guy has gotten to run as DA, you'll probably find some from these conservative groups or people. And so now the question is, since he's alleging as speculation that maybe I'll be influenced by Porn Valley and they in some way contribute money to me, will he be influenced by somebody who contributes money to his campaign to prosecute in the first place?"
"I wouldn't raise that issue as a ground for disqualification because I don't think it rises to that level," Cambria continued, "but he's trying to raise the inverse, or speculate about it with regard to me. It's just insufficient. So I would say it's no more true that I should be disqualified because he thinks I might be influenced by somebody in Porn Valley than that he should be disqualified because I might think that he would be influenced by somebody in the Religious Right who would contribute to his campaign, or conservative people who would contribute to his campaign. These are issues that are really non-issues. The bottom line is, I have no conflict, he's not alleged facts demonstrating that I have a conflict, so I should be admitted pro hoc, just like New York and California, the states that I passed the bar in, admit people from Virginia all the time."