PASADENA, Calif.—Ira Isaacs once again found himself in court in Pasadena, though this time as an appellant rather than as a defendant—but the security detail at the building which locally houses the Ninth Circuit Court of Appeals remembered him from his very first trial in front of Ninth Circuit Chief Judge Alex Kozinski (sitting as a district judge) which took place in another area of the courthouse in 2008.
Today's hearing was actually in front of a three-judge appeals panel—or, rather two judges, Ferdinand F. Fernandez and Susan P. Graber, and a video camera, since Phoenix-based Circuit Judge Mary H. Murguia was present via a video/audio hook-up that enabled her to see, hear and participate in what was going on.
Isaacs' attorney Roger Jon Diamond got his argument off to an awkward start when he referenced the fact that Kozinski had been the first judge to hear the case, and Judge Fernandez stopped him in his tracks, asking, "What's that got to do with this?" Diamond quickly backed off the comment and began to talk about District Judge George H. King's conduct of the trial, which ended in Isaacs being convicted on five obscenity and related counts for producing, selling and/or shipping four movies: Mako's First Time Scat, Hollywood Scat Amateurs 7 and 10, and Japanese Doggie 3 Way.
Diamond focused particularly on King's conduct during closing argument, which included, as AVN chronicled here and here, King's instructions to Diamond not to "argue outside the evidence" (such as, for instance, that the charged movies were never meant to be seen by 12 strangers in a federal courtroom) and King's response to a jury question regarding the concept of "prurient interest," where the jury had questioned whether, in order to be found obscene, a movie had to appeal to a "morbid, degrading or unhealthy interest in sex or excretion," or whether the three "interests" had to be considered together?
At different points during his closing argument, Diamond had used the phrase "morbid, degrading and unhealthy," while at another point, he'd said "morbid, degrading or unhealthy," and Judge King instructed the jury, in response to its question, that they could convict if a movie fit any of the three terms. Diamond argued to the panel that because of his use of the "and" at one point, Judge King's instruction that "or" was the applicable term might have made the jury see Diamond as less credible for his use of the "and."
Judge Graber, however, opined that Diamond might have confused the jury by citing two different forms of the phrase, to which Diamond responded, "I told the jury I was reading the instruction," referring to Judge King's jury instruction. But Judge Fernandez interpreted the jury's question to be, "You [Judge King] said 'and'; did you mean 'and'?" Then, he added that even at the appeals level, "We're always flipping back and forth" between the two terms.
Judge Murguia noted that Judge King had regiven the same instruction that he had originally given, and asked Diamond what more King could have done? Diamond responded that King should have reinstructed the jury on the issue, but Judge Murguia noted that he had done so, and Judge Graber noted that, contrary to Diamond's argument, Judge King had not "changed course" on the issue.
What followed was some technical argument on the issue, with Diamond citing cases that dealt with the impact of a judge interfering with closing arguments and concluding that his closing argument was "substantially impaired" by the judge's interruptions and his earlier instructions not to argue, for instance, that the charged movies weren't meant to be watched in a courtroom, as well as several other points that Diamond had wanted to get in.
The Justice Department's side of the issue was presented by Assistant U.S. Attorney Jeffrey Zeeman, although the prosecutor who actually conducted the trial, Michael Grant, was there as well.
Zeeman began by arguing that Diamond had not pointed to any specific errors in the conduct of the trial, and that if there were in fact any, they were inconsequential. He also argued that Diamond, during his argument, had never focused on the prurience issue, but had simply mentioned it twice in passing, though admittedly in two different versions. Zeeman took the position that since Diamond had once misstated the law, if he then suffered any lack of credibility, it was his own fault.
However, when Judge Murguia asked whether Isaacs might have been prejudiced by the fact that two versions of the "prurient interest" definition had been stated to the jury, Zeeman responded that he didn't believe that Judge King had abused his discretion by simply restating the definition he had originally cited in his charge to the jury. Judge Murguia then asked if the restated definition and Judge King's instructions limiting argument could have affected Diamond's defense strategy? Zeeman responded that there had been no discussion on it, and pointed out that "prurient interest" was simply one of the three prongs of the Miller test for obscenity, and that Diamond's objection was only to one of the three descriptions of prurience, implying that the confusion of "and" and "or" were not significant to the jury's deliberations overall.
Judge Graber then asked whether Judge King could have allowed further argument on the prurience issue, and Zeeman admitted that it was within the judge's discretion—then switched topics to argue that Judge King had been correct to limit the subjects Diamond could bring up in his argument and to warn Diamond that he should "stick to the facts." The panel, however, was less accepting of that argument, with Judge Graber noting that it was not incumbent upon Diamond to stick strictly to the record that had been made in the case, but that he also could have brought in "generic references to the world." For example, at one point, Diamond had made a reference to the then-current case of Terri Schiavo, to which Grant had objected, with Judge King sustaining the objection.
Judge Graber seemed to disagree with the judge's ruling on that issue, and posed the hypothetical of an attorney arguing today, who brought up the issue of the current conflict in the Crimea; should that also be excluded, under Judge King's logic? Zeeman once again responded that Judge King had not abused his discretion in squelching such argument, and stated that he himself believed that the jury might have been confused by such extraneous "new facts." It came out later that in all, there had been 14 objections raised by the prosecution during Diamond's closing, ten of which were that Diamond was stating facts not in the record, of which Judge King sustained seven. Zeeman said that the objections had had a "de minimus impact" on the jury. He also argued that Diamond had "stepped over the line" when, in his argument, Diamond had made passing references to gay rights and the sexual customs of other countries. Zeeman said that such "facts ... can't be tested in any way" after testimony has been concluded, and that if Diamond had wanted to get such facts on the record, he could have introduced witnesses at trial to testify to them, but that he did not.
"The court acted within its wide discretion," Zeeman concluded, and that such conduct by the judge should not rise to the level of overturning the verdicts.
Argument concluded at about 9:45 a.m., and upon leaving the courtroom, Diamond commented that he believed the judges had heard what he had to say, and was confident that the panel would grant Isaacs some relief based on his argument.
It is not known when the panel will deliver its opinion in the matter, and Diamond would not comment on what course of action he might take in response to the panel's findings.