PASADENA - After a two-and-a-half hour hearing before Judge (and Ninth Circuit Chief Judge) Alex Kozinski yesterday afternoon, producer/retailer Ira Isaacs was declared to be an expert in his chosen field, "shock art."
"Mr. Isaacs may testify as an expert," declared Judge Kozinski. "Whether the jury is going to be as taken with him as he is with himself is another question... What is art is a highly subjective thing."
Judge Kozinski's announcement came at the end of a contentious afternoon, most of which was taken up in questioning the defense's other proposed expert, Dr. Mohan Nair (Nah-EAR), a Los Alamitos-based forensic psychiatrist who has "maintained an interest in sexually deviant behavior," and has "evaluated and treated people with problems of sexual deviancy," according to his testimony.
Dr. Nair, who has testified frequently in court on child abuse, child sexual abuse and sex crimes, was called on Tuesday to ascertain his expertise with respect to the scientific value of the movies which Isaacs is charged with having sold over the Internet, in what is known as a "Daubert hearing."
The term comes from the U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals - a decision which remanded a ruling by the Ninth Circuit U.S. Court of Appeals, authored by Judge Alex Kozinski, to that court to clear up the question of whether the scientific evidence in that case "both rests on a reliable foundation and is relevant to the task at hand."
"Pertinent evidence based on scientifically valid principles will satisfy those demands," Justice Harry Blackmun continued. "The inquiries of the District Court and the Court of Appeals focused almost exclusively on 'general acceptance,' as gauged by publication and the decisions of other courts."
Applying the Supreme Court's dictum, the Ninth Circuit reconsidered the case, which dealt with the question of whether Merrell Dow's drug Bendectin caused birth defects in two children, and concluded, in another opinion authored by Judge Kozinski, that petitioners' experts did not meet the criteria set forth by the Supreme Court.
"Our responsibility, then, unless we badly misread the Supreme Court's opinion," Judge Kozinski wrote at the beginning of his second Daubert opinion, "is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not 'good science,' and occasionally to reject such expert testimony because it was not 'derived by the scientific method.' Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task."
There has been much speculation about why Judge Kozinski chose to replace District Court Judge George King in the Isaacs case, but the reason may be as simple as Judge Kozinski's continued interest in Daubert-type questions - and where is there a greater lack of "good science" than in the area of the effects of "deviant sexual material," more often known by its scientific term "paraphilia," on reasonable adult citizens?
In an interview he gave at a conference of Certified Public Accountants in 2000, Judge Kozinski recited his understanding of a four-part test to determine the admissibility of an expert witness's testimony: 1) Is the witness an expert in the sense of having credentials or experience? 2) Does the testimony have a basis in fact? 3) Is it relevant and reliable? 4) Are there other factors that bear upon the question of admissibility?
Certainly, Dr. Nair's work history and affiliations as well as his 30 year history in the field of psychiatry went a log way to establishing his credibility as an expert witness in this case, and he testified that he had reviewed the movies at issue here.
As to whether Dr. Nair's opinion would be "relevant and reliable," upon questioning by Roger Jon Diamond, Isaacs' attorney, the doctor quoted extensively from Kaplan and Sadock's Comprehensive Textbook of Psychiatry, which he described as "the most authoritative textbook in the United States." Specifically, he referred to Chapter 18.2, "Paraphilias," which term he described as a "disorder" of attraction to non-consensual partners, such as voyeurism; pedophilia, or attraction to children; or attraction to non-human objects, such as excrement or animals.
Based on his understanding of paraphilias, Dr. Nair said, "I'm of the opinion that the movies have serious scientific value," adding that they could be considered to be "a sexual aid, like Viagra." He concluded that the movies could have value for masturbatory purposes, for sexual relief and as the basis for a relationship between two partners.
Asked how depictions of cophrophilia (interest in excrement) and bestiality could serve as the basis for sexual release, Dr. Nair essentially said that it was a matter of taste: "Some people like sushi and some like hamburgers." He also said that there was no "bright line" between one form of deviant sexual material and another, and that when one considers the whole spectrum of sexual fetishes, "unusual sexual behaviors are highly prevalent" in society.
When Diamond finished his examination, prosecutor Ken Whitted tried to pin down what exactly Dr. Nair though was scientifically valuable about the movies. Dr. Nair agreed that the fact that the movies were sexually stimulating for some contributed to their scientific value, if for no other reason than that they provided sexual satisfaction - which he described as an "important result" - and that they served as a basis for scientific study of sexuality.
Whitted then pressed Dr. Nair as to whether he considered other sex-related situations also to have scientific value, including scenes of a human having sex with a goat or dog, which the doctor agreed would be considered "abnormal" but would nonetheless have similar value, both for scientific study and for treatment of the paraphilia. However, when Whitted asked about sex with children, Dr. Nair drew the line. He agreed that child pornography is an important area of scientific study, but distinguished child porn from other paraphilias in that sexually explicit portrayals using children cannot be used to treat pedophilia, and because, unlike most of the other paraphilias, the underage participants are actually hurt through the making of child porn.
After the attorneys had completed their questioning of Dr. Nair, Judge Kozinski asked for argument regarding the doctor's "expert" status, and the question seemed to turn on whether the fact that Isaacs' movies could be used for therapy therefore meant that they have scientific value. Diamond noted that Congress has never attempted to define "scientific value" in dealing with allegedly obscene materials; that the controlling case law on scientific value continues to be Miller v. California, which itself did not attempt to define just what "scientific value" - part of Miller's third "prong" - actually meant.
"It is an issue that I have always succeeded on in obscenity cases," said First Amendment attorney Reed Lee, referring to the link between therapeutic value and Miller's "scientific value." "But it is an issue that calls for a distinction between intrinsic and extrinsic value... By far, the better argument is that if it has therapeutic value, that is a reason to say that it has serious scientific value."
Judge Kozinski, however, was less sure of the link between "therapeutic value" and "scientific value," and after nearly a half hour's argument on the subject, asked the attorneys to provide briefs on the topic, which he would consider and make his decision later.
That left Isaacs' own expertise as the only order of business still outstanding, and Isaacs then took the witness stand, it having been first explained by both his attorney and the judge that his testimony in this hearing meant that Isaacs had lost his right to refuse to answer future questions on Fifth Amendment grounds. It was a right that Isaacs seemed almost happy to waive.
Isaacs first described his background in advertising, having run an advertising agency for 25 years before he began making "shock art" on video and on the Internet. He then proceeded to describe several examples of "shock art," including a work by Marcel Duchamp, "The Fountain," which used feces, as well as Chris Ofili's portrait of "Holy Virgin Mary," composed partly of elephant dung. He also referenced a sculpture on display at the Whitney Museum by Kiki Smith of a woman with a 10-foot string of feces coming out of her butt, as well as a scene from Matt Stone and Trey Parker's movie Team America, which featured puppets pissing and shitting on other puppets.
"To be an artist today, you've got to be on the edge," Isaacs declared. "Art has really no clear definition."
He went on to describe how the public's reaction to art has changed over the years, from the days when James Joyce's novel "Ulysses" was considered obscene, through the various courtroom vindications of Larry Flynt's Hustler magazine.
At that point, the judge cut Isaacs off, noting that this was merely a hearing to determine his qualifications to testify as an art expert. Whitted then questioned Isaacs further about his background, eliciting the fact that he had dropped out of high school, had successfully completed the G.E.D. test, and eventually received a Bachelor's degree in Communication Arts from the University of New York at New Paltz in 1977.
Whitted and Isaacs then began a discussion of just what "art" is, with Isaacs taking the position that, "art is what artists do; there is no exact definition of art," but agreeing, in answer to a question, that what he produces is art, and that the art that he produces has value.
"What art should do is engage the viewer and get them to think about it," Isaacs offered.
It was at that point that Judge Kozinski accepted Isaacs' expertise, and after discussing some logistical details of the upcoming trial, concluded the hearing.