Max Hardcore's Motion for New Trial Denied
Appeal expected after Hardcore's Sept. 6 sentencing
Posted Jul 28th, 2008 02:27 PM by Mark Kernes
— In an order issued today, U.S. District Court Judge Susan Bucklew has denied the motion by defendants Paul Little (a.k.a. Max hardcore) and Max World Entertainment for a new trial and/or a judgment of acquittal for the charges upon which they were convicted on June 5. Little and Max World had been charged with interstate transportation of obscene material and of posting obscene material on the Internet.
Among the multiple bases for new trial or acquittal contained in the defense motion, authored by Max World attorney Jennifer Kinsley, were three instances of jury irregularities; charges of bias against the defendants allegedly committed by Judge Bucklew herself; failure of the prosecution to produce enough evidence for the defendants to be found guilty; and several legal issues based on the Supreme Court's ruling in Lawrence v. Texas
Most of the issues raised in the defense motion have been chronicled in more detail in AVN's comprehensive coverage
of the trial itself. For instance, the defense had charged that Judge Bucklew had failed to perform due diligence in questioning the juror
who had sent a note on the third day of trial questioning whether the jury had to sit through all five of the movies charged in the indictment: The "Euro" versions of Max Extreme 20
, Golden Guzzlers 7
, Planet Max 16
, Fists of Fury 4
and Pure Max 19
"Defendants fault the Court for not asking the juror whether: (1) the note reflected a prejudgment of the evidence as obscene; and (2) the contents of the note had been shared with other jurors," wrote Judge Bucklew in her order denying the motion.
But although Judge Bucklew claims that she "questioned the juror as to who wrote the note and found no basis for concluding that any prejudgment of the evidence or premature deliberations had taken place," there is no evidence of questioning on those two subjects in the transcript; merely instructions to the jury, as the judge notes in her order, "not to discuss the case with anyone or to begin deliberating until the end of trial." The judge also ruled that since the note had come from the one alternate juror, who played no part in the actual deliberations, the effects of the note or that juror's possible discussions with other jurors "ring hollow."
Another irregularity was the fact that an Assistant U.S. Attorney not related to the case had had a brief conversation with one juror in an elevator, saying to the juror, "You're not going up there to watch that porn?" The defense argued that the question was pejorative and might have affected the juror's opinion of the evidence, and that Judge Bucklew's failure to question that juror about the conversation amounted to error. The judge disagreed.
Finally, the defense cites the fact that, one evening after deliberations were already under way, one of the jurors received a message
from her employer firing her from her job. The attorneys argued that the emotional fallout from her dismissal may have affected the juror's ability to deliberate — and indeed, the affected juror was one of three who had held out for acquittal for over 14 hours, but eventually — and, she later said, reluctantly — gave in to the majority and voted "guilty" on all charges. However, that juror was visibly upset, and the fact that she had been crying was evident as the foreman announced the verdicts in the courtroom. It was later discovered that the juror had sent a note to Judge Bucklew telling the judge of her firing, but that fact was not revealed until after the jury verdict was in. The defense has argued that the juror's having been fired may have made her less able to maintain her beliefs that the defendant was not guilty of the charges.
"The Court decided to wait until after the jury concluded its deliberations to speak with the juror, as the note concerned matters unrelated to the case and was purely a personal matter relating to the juror," Judge Bucklew argued in her order. "Defendants seem to argue that had the Court spoken to the juror before a verdict was reached, the Court would have had to excuse the juror from jury service and declare a mistrial. This argument is wholly speculative. After the jury's verdict was published to the Court, each juror was polled as to whether the verdict as published was their verdict. Significantly, each juror — including the juror in question — said that the verdict as published was their verdict."
It is likely that an appeals court will take a look at the full circumstances of that juror's mental state during deliberations, along with an affidavit which that juror is expected to file concerning that mental state and how it affected her ability to deliberate. It is also legally questionable whether Judge Bucklew should have withheld the juror's condition from the defense while deliberations were still in progress.
Judge Bucklew spent just one paragraph in the order reiterating her failure to dismiss the charges based on Little's substantive due process rights under the Fifth and Fourteenth Amendments, merely citing and reiterating her pretrial rulings on that subject. She similarly dismissed the defense's argument that the "community" whose "standards" should govern material posted on the World Wide Web is the entire world, as recently affirmed by the Third Circuit in its COPA ruling
The defense motion also took Judge Bucklew to task for failing to recuse herself from the trial after having made numerous remarks that could easily be seen as prejudicial against the defendants, mostly regarding the necessity to play the entirety of the movies charged in the indictment — a clear requirement of the Miller test for obscenity, which states that the charged material must be "taken as a whole." AVN's reporting of the trial noted numerous instances where the judge questioned the need to play the full videos for the jury, which remarks formed the basis for a mid-trial defense Motion for Mistrial and/or Recusal of Judge
However, while Judge Bucklew admitted that, under the Eleventh Circuit rules, a judge should recuse him/herself "when a judge's remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party," she defended her own actions by claiming that "[n]either a trial judge's comments on lack of evidence, rulings adverse to a party, nor friction between the court and counsel constitute pervasive bias." An examination of the trial transcript, which an appeals panel is likely to do, should reveal that Judge Bucklew's comments went far beyond mere "friction" between the Court and the parties, and were not merely "comments on the lack of evidence" — in fact, the Court was attempting to withhold such evidence from the jury — nor could her comments be described merely as "rulings adverse to" the defense.
Finally, Judge Bucklew rejected the defense's claim that neither Little nor Max World had committed the crime of mailing obscene matter into the Middle District of Florida — a fact clearly attested to by one of the prosecution's own witnesses, James Komurek, owner of distributor JKG, Inc., which had performed the actual mailing — and that the government had therefore failed to present sufficient evidence of the defendants' guilt. Judge Bucklew merely noted that she had rejected that argument when the defense had presented it pre-deliberations, and that her opinion of the arguments had not changed. She similarly rejected the defense's claim — also the subject of a pre-deliberation motion — that the government had failed to present sufficient evidence that the Hardcore material violated the community standards of its intended audience, whom defense witness Dr. Michael Brannon had described
as an "atypical deviant group."
According to Judge Bucklew, the Supreme Court's ruling in Paris Adult Theater I v. Slaton
absolved the government of a requirement that it prove community standards — and, "Further, the verdict itself evidences the fact that the jury was able to determine that the charged materials violated the community standards of the Middle District of Florida." (Can anyone say, "Cart before the horse"?)
In short, Judge Bucklew denied all of the defense's motions for new trial and/or acquittal. However, it is almost certain that all of those issues, and several more, will be raised in Little's and Max World's appeal of the verdict to the Eleventh Circuit Court of Appeals, which will be filed shortly after the judge sentences the defendants, at a hearing currently scheduled for Sept. 6.