(The following account was predominantly written by First Amendment attorney J.D. Obenberger and reflect his personal observations of the trial. Additional comments by defense attorneys H. Louis Sirkin and Jamie Benjamin have been added to round out the discussion of the issues.)
FORREST CITY, Ark.—In a sleepy Delta town named after Confederate General Nathan Bedford Forrest, founder of the Ku Klux Klan, nestled into the side of Crowley's Ridge about 40 miles west of Memphis, after about four hours of deliberation following a week of trial, a jury in rural St. Francis County, Ark., rendered a verdict just before 11 p.m. Friday night acquitting defendants Jim Philpot and Wayne Philpot, individually and as principals of J&W Investments, Inc., of the two obscenity counts with which each had been charged.
The local government's crusade against two adult superstores that operated at exits on Interstate Highway 40 began with undercover DVD purchases by confidential informants and arrests in 2005 and 2006. Manager Larona McClurg and the store's clerks entered "no contest" pleas in the initial phase of the investigation and prosecution. McClurg remains on probation as a result of her early arrest and nolo plea. During the course of the trial, charges against one of the Philpots' stores, R.J.J.W. Enterprises, Inc., resulted in a directed verdict of acquittal because, according to Wayne Philpot's attorney, veteran obscenity litigator H. Louis Sirkin, neither of the charged videos had been bought at that store. The other store, J&W Investments, was closed by its owners in February 2010 and is now an adult dance club.
On November 18, 2008, Prosecuting Attorney Fletcher Long Jr. filed a criminal information with the court clerk alleging that Jimmy and Wayne Philpot and their corporations had committed the Class D felony of the promotion of obscenity by selling obscene materials to confidential informants at the adult superstore on October 17, 2007 (Private's Reality #1) and November 14, 2007 (DVSX's Grudgefuck 7). The Philpots faced six years in prison had they been convicted by this jury.
Long has been the elected prosecutor for St. Francis County since 1993, and before his election had acted as an assistant or deputy prosecutor. Long is a tall, craggy man with a shock of white hair and a slow, ponderous style in the courtroom. The image of a very strict country parson easily comes to mind. He is probably best known on the national stage for his controversial but successful prosecution of decorated Vietnam veteran Wayne DuMond for the rape of Forrest City High School cheerleader Ashley Stephens, the daughter of a politically well-connected local mortician, in 1983.
Long co-tried this case with a much younger man, Deputy Prosecutor Christopher Moreledge, whose stiff and almost mechanical movements bring to mind both Star Wars' R2D2 and Vincent Kartheiser's Peter Campbell character on Mad Men. His closely cropped hair and shaved neck made it easy to spot any discomfort he was feeling, because when he blushes he does so on the side of the neck. Moreledge wears a gold oval signet ring where other men might wear a wedding ring.
Both were assisted by Department of Justice Obscenity Prosecution Task Force Attorney Matthew Buzzelli, who sat at counsel table throughout trial and softly consulted with the local prosecutors, though he neither formally appeared nor went on the record at any point. Buzzelli has been awarded a Special Achievement Award from the DOJ, and it was he who provided Task Force assistance to local prosecutors in Staunton, Va., in the Rick Krial case that led to convictions two years ago. When he did so, the newspapers reported his explanation of his appearance that DOJ was helping out only because Staunton was so close to D.C.
The individual defendants were represented by Sirkin of Cincinnati, fresh from his success in D.C. on the John Stagliano case, and Fort Lauderdale's well-known adult advocate Jamie Benjamin, both members of the First Amendment Lawyers Association, together with West Memphis attorney Bart Ziegenhorn, who represented both corporations. Sirkin's style of cross-examination and closing argument is best described as subtle, suave and unflappable. Benjamin brought a significant degree of passion and intensity to the fore at each stage of the trial. They were complemented by Ziegenhorn's "just the facts" style of candor, which made a visible impression on the jury.
The jury consisted of six men and six women, six whites and six blacks, ranging in age from their 20s to their 60s.
After the jury was empanelled, the courtroom was nearly empty during the week of trial but for the wives of the Philpots and sometimes a daughter. A local reporter, denied the opportunity to take photographs of the trial, made sporadic visits to court. At some points during the proceedings, County Judge Gary Hughes made extended appearances. In Arkansas, the county judge is not so much an actual judicial officer as he is the chief executive authority for the county, and it was reported that Hughes was the actual driving force behind the Philpot crusade. He is a stocky man with a huge amount of white hair combed straight back from his receding hairline.
The trial judge was Olly Neal, a black jurist just approaching 70 years of age, tall, skinny as a rail, with white, wooly hair. He served ten years on the Arkansas Appellate Court and returned to Forrest City recently to fill a vacancy caused when a St. Francis County judge got in trouble and left the bench. Though he projected a warm, charming, cordial, and often humorous kindliness during the trial, together with a careful, calm, and considerate demeanor to all in the courtroom, he essentially gave the prosecutors nearly everything they asked for, fair or foul, and gave the defense next to nothing that it sought. Maybe it's significant that he was Arkansas' first African-American elected prosecutor in 1991, but he's not known in this locale for being a conservative.
"The judge who originally was assigned to the case—Judge Potter or Poster or something like that—last fall when it ended up getting continued, had difficulty saying the name of the one film," Sirkin told AVN, "and human sexuality to him—he was older—was really a tough thing, and he's the one that granted the motion in limine; we were very limited in what we could say about the nature of the material; we weren't allowed to mention the First Amendment."
The prosecutors presented to the jury a "summary" compilation of the two videos, running about 15 minutes, which the State described as a fair and accurate distillation, while in fact its focus was on hardcore acts of simultaneous double penetration, simultaneous dual facial ejaculations, choking, awkward insertions of dildos mounted on sticks or rods, the stuffing of underwear into the mouth of a female performer, tossing a female performer onto and pulling her about the bed by a leg, and similar acts.
"The arguments that they made were the typical stuff: 'Ass to mouth is unhealthy; double penetration; choking'—and they only wanted to show 15 minutes of the total films, which were an hour and 40 minutes and two hours long," Sirkin stated. "They showed three-minute segments that were picked out by the prosecutor with a tech guy up in Little Rock. All I kept thinking about is, this is today's Inherit the Wind. It was just really awkward."
However, when the entire six hours of Reality #1 and Grudgefuck 7 were played for the jury at the defense's request, the jurors were exposed to the videos' humorous dialogue and witticisms, the extended psychodrama between the performers, and documentary-style content including Private's promotional video concerning a then-upcoming cinematographic production expensively filmed in Morocco by an "acclaimed" director, featuring elaborate sets and cameras mounted on tracks, wholly missing from the prosecution's "fair and accurate" summary. The summary presented by the prosecution appeared to plainly mislead the jury as to key issues of the case, a point which could not have been missed by it. While the same civilian who'd helped prepare the summary stated that the material had no plot that he could discern, especially in the case of Grudgefuck 7, it is patently evident that hostility was set up between the characters and a resolution reached in each of the segments; in one segment, an elaborate psychological reversal occurred though often witty ad-lib dialogue turning the aggressive male into the psychological bottom.
A dramatic and pivotal moment of trial occurred when Lou Sirkin cross-examined the civilian State Police employee who created that summary. After establishing that the charged works each bore a copyright notice, he asked the State Police employee whether he had "respected" the copyright in making his (derivative) summary. Time passed. Silence. The uncomfortable employee started to increasingly display his discomfort as the ramifications of the question sunk in. He started to explain what he was considering in formulating his answer. More silence. Finally, Sirkin let him off the hook, but the damage had been done. Especially when coupled with evidence of the prosecutor's role in the creation of the summary, these events appeared to strongly and negatively flavor the credibility of the prosecution and adversely color its apparent candor before the jury.
The first charged video, Reality #1 from Private, reflected anything but reality. The segments consisted of pure fantasy set in Europe; high-production-value style with attractive performers displaying elaborate make-up and hair styling, speaking German. The sets included private pools, richly decorated living rooms, and other expensive sets that have practically become a Private trademark. The scenes were interspersed with documentary-style promos extolling new Private productions with attention to the cost of the productions and the fame of the directors and performers. They included superficial interviews with the performers in English and were accompanied by trailers of the same sort. The dialogue was minimal in the featured content but consisted mainly of long periods of energetic, hard sex, usually of the anal and double-penetration variety, depicting the males literally working up a sweat. Direct ass-to-mouth was routine. The female performers seemed to demonstrate consistent enthusiasm for these acts and the invariable facial and multiple facial ejaculations were usually accompanied by at least modest smiles.
The second charged video, Grudgefuck 7 from DVSX, as its title might imply, featured hostility between partners, usually with a farcical or lightweight plot line that just managed to take the edge off of such otherwise-violent depictions such as choking, stuffing panties in mouths and tossing partners around and dragging them by the leg, but there was clearly a context to the violence. At least one of the male/female vignettes featured significant psychological dialogue throughout the sex that reversed the roles of dominance by which the segment began, with the petite female telling her male aggressor that he was a "pussy" and it looked to her like he "swallowed."
These videos had been purchased by confidential informants after deputies sent them into the store with hundred-dollar bills and instructions merely to "buy pornography." Their content was actually far richer in plot and documentary value under the "third prong" of the Miller test (relating to "serious value") than a random selection from the racks and bins of a normal adult retail establishment would be expected to yield.
The most dramatic moments of the trial occurred outside the presence of the jury and involved whether manager Larona McClurg would testify in response to a prosecution subpoena. The prosecutors needed her testimony to establish that Wayne and Jimmy Philpot, absentee owners living in Florida, knew the nature and character of the store's products and that everything that she did was done by their authority. However, still employed at the store and facing allegations that she had violated the terms of her probation for continuing to work at the store, which was deemed "unsuitable employment" by her probation officer, she indicated that she intended to assert her Fifth Amendment privilege against testifying. The State sought and obtained an order for testimonial immunity from Judge Neal, but she still refused to testify unless and until she could confer with her independent counsel. With great tact and apparent restraint, the judge asked her whether she understood that such conduct might have "consequences" to her "liberty," though he said he didn't want to look as though he were threatening her. At that point, the State agreed to let her reach her attorney by cell phone and get advice from him concerning the order. She did so and began to testify, providing the testimony to the State that it needed.
Perhaps as a result of the Justice Department's failure to make out its case in Washington during the Stagliano trial, the prosecutors here spent much time and effort to tie the brothers Philpot to the operations of the store and to establish that the proceeds wound up in their hands outside the State of Arkansas. They put the manager of the Philpots’ local bank on the stand to authenticate signature cards and copies of numerous checks, and McClurg testified that she used a stamp or manually signed her bosses’ names to the checks, acting on general authorization or instruction.
"The big line from the prosecutor was, 'The Philpots live in Florida, and they leave the state and leave their filth behind,' and all those kind of inflaming things," Sirkin recounted.
Still, on Friday morning, Sept. 3, Judge Neal granted Ziegenhorn's motion for a directed verdict in favor of R.J.J.W. Investments, Inc. because there was not evidence that either video was purchased from the store that corporation operated, dismissing that party as a defendant.
Outside the presence of the jury, Judge Neal heard the proffered testimony of a private investigator retained by the defense, who had researched extensively the availability of sexually explicit materials throughout the different parts of Arkansas and had purchased similar material at 23 locations at roughly the time the purchases in this case had been made. He testified that he had lost some of them along the way, but stood prepared to testify about 16 of them and provide a foundation for their admission into evidence. Under an Arkansas statute, the "community" at interest for the purposes of the first two prongs of the Miller test is statewide. The detective further testified that there was one other adult megastore standing at an Interstate exit in Texarkana, near the Texas border, as well as many other, more discreet locations where he purchased—and observed others purchasing—sexually explicit materials akin to the videos at bar in the Philpot case. These places included "head shops" which featured adult material behind a sheet; various lingerie and sex toy shops with back rooms, some locked and some not locked; at least one store with a selection of explicit videos on another floor; and gas stations selling magazines with videos bundled in. Few if any of the outlets outside Texarkana advertised the availability of adult materials on exterior signage, and it was clear that some digging was necessary to find similar materials elsewhere in Arkansas.
In order to introduce evidence of comparable material to prove community acceptance of the materials, it is necessary in Arkansas and many other jurisdictions to establish the similarity of the materials and their sale under circumstances that suggest such acceptance. The State stipulated to the proffered comparables' similarity to the materials charged in Forrest City but contested the second element of the test. After hearing the offer of proof, Judge Neal prohibited the testimony as to the comparables, stating that the mere fact that such materials could be located and purchased in other stores' "back rooms" did not establish community acceptance.
At the end of the prosecution's case, the defense also rested without offering any witnesses or evidence on its behalf, and after granting the dismissal of R.J.J.W. Enterprises, Inc. from the case, the judge proceeded to give the jury its final instructions. However, the judge's instructions regarding the definition of "prurience," an important part of the first prong of the Miller test, have seldom been so badly mangled. Normally, "prurience" is simply defined in obscenity cases as an appeal to a morbid or shameful interest in nudity, sex, or excretion.
"In the trial, he [Judge Neal] gave a definition of 'prurient' similar to what they tried to do in Washington, which was the subject of the objection during opening statements," Sirkin recounted. "Judge Neal allowed the instructions that were proposed by the government dealing with the definition of 'prurient.' You know, it was 'morbid, shameful, unhealthy, lascivious, abnormally lustful, against morality'—language like that, which we objected to in Stagliano and the court there agreed with us. But he left that language in there. It didn't hurt us, but that's the kind of stuff that would happen."
Long also asked for language in the definition of patent offensiveness that would have described it as a violation of customary limits of "morality and decency" but he withdrew that request when the argument seemed to go against him. But he was able to keep "abnormally sexually exciting" as part of the prurience definition, a seeming excursion from Supreme Court jurisprudence, and he obtained an accurate (but unfairly emphasizing) instruction plainly telling the jury that obscenity is just not protected by the First Amendment. These instructions were loaded in favor of the prosecution and probably contained the potential for reversible error had the defendants been convicted.
Moreledge began stiffly arguing to the jury immediately after Judge Neal instructed on the law. His arguments went on for 40 minutes and seemed largely ineffective or counterproductive. He argued that the "summary" video was fair and accurate; he claimed that, though the Private video extolled location shooting in Morocco, there was no evidence showing Morocco. (It had actually seemed plain enough when the Moroccan castles and landscapes appeared on the screen before the jury.) He announced that the jury should not be desensitized to hardcore and that it should remember its first shock when it saw a facial ejaculation. This comment seemed to assume something about the jury's knowledge and experience that just possibly might not be true.
"Considering the setting of this case, believe me, it could be the modern Scopes trial," Sirkin added. "At least from the prosecution's standpoint, it was clear that they believe that the average person in Arkansas is a person that shops at Wal-Mart, that's reached a level that's still somewhere in the 1950s or 1960s and have not recognized that we've moved on, and this is something really terrible. But obviously, to the 12 jurors that we ultimately ended up with, it certainly wasn't that way."
Moreledge kept reminding the jury that it was to enforce "THE LAW" as instructed by the judge, and this became his mantra, repeated many more times, though without much visible punch. Similarly, he referred several times to the judge's instructions as a "go-to" that answered all of the jury's questions. Defense objections and motions for mistrial, actually expressed before the jury, punctuated his argument. There had been testimony about the AVN show in Las Vegas, attended by the store manager, and he advised the jury that what happens in Las Vegas should stay in Las Vegas and not come to Arkansas. He referred to an outtake from one of the movies depicting on-set observers making a "choking signal" to the performers, but his interpretation of what everyone in the courtroom saw did not seem to comport with the activity shown on the screen. At one point in the trial, he had asked the manager if she would take her grandmother to see the material that was at issue here, reflecting, perhaps, Moreledge's basic misunderstanding of freedom of speech.
It is an easy inference that the prosecution lost whatever remaining credibility it had by the end of Moreledge's argument, which seemed at variance with the actual evidence and which clearly misled the jury just as the summary had. By any account, his argument was a series of misfires that damaged the prosecution case.
Ziegenhorn began his closing with a concession that the videos were sold by his client—an admission that only enhanced his credibility. However, he argued that the depictions at issue were all "standard stuff."
When his turn came, Jamie Benjamin emphasized the concept of common sense and described that as the jury's best guide. He reminded the jury that people just don't talk about sex and that it is hard to know what one's neighbors actually think about this kind of material. He described America as a nation built of small towns in which adult materials are enjoyed without much discussion with the neighbors. He said that it was not up to Fletcher Long to determine what people get to see, and that, contrary to the prosecution's implications in this case, what Wal-Mart chooses to sell cannot be the arbiter of what is fit to be sold and viewed in a community. He emphasized that all of the material was for private use by individuals and their companions.
Sirkin, one of the legends of obscenity defense, went last. His style was suave, close and intimate, casual and charming. Having been given very little evidence to work with, thanks to a series of adverse rulings by the judge, his creative energies cascaded and he crafted a compelling set of arguments. He turned the store manager's testimony concerning $995,000 in profits shipped out of state into evidence that, because a lot of money was made, the community must really, really accept explicit material such as the videos on trial here. He reminded the jury that it had heard evidence of $60,000 returned to the county as its share of sale tax, further bolstering the appearance of community acceptance of this material. He urged the jury not to speculate on things not proven because, he argued, it was the prosecutor who had the burden of proving facts to them. He argued too that patent offensiveness and prurience must be seen in context; in this case, the context that it was intended for private use. He argued that the material has political and scientific value because it helps people imagine what they might do and fantasize about it. He asked the jury to tell Fletcher Long that the prosecutor was not their censor, and finally, he told the jurors that the issues they were called upon to decide affected their own freedom.
After Sirkin had finished, Long took the rostrum with the passion and style of a country preacher—and apparently with as little legal acumen. During the first four minutes of Long's opening argument, the defense team objected and moved for a mistrial three times, all in the presence of the jury. Long gravely announced, "These defendants brought us this 'artwork.' When they leave, they won't take it with them. They will leave it with us, only taking the money with them. The filth we'll keep." The defense immediately objected and moved for a mistrial, which Judge Neal denied. Long went on, observing that the jury heard a lot about Las Vegas and he wondered if Forrest City would become the "Porn Capital of East Arkansas." Again: Objection; motion for mistrial; motion denied.
Long then claimed that the prosecution did not need to prove community standards, because "the law tells you what they are. ... Do they argue to you that this material is accepted as standard for Arkansas?" Once more: Objection; motion for mistrial; motion denied. Long then said that Sirkin was right, that no one would invite a friend or another couple over to watch this stuff. He said that proves the material is not accepted. He said that mortgage payments and utility payments and taxes and salaries are not a defense to obscenity—and he invited the jury to look for any language so stating in the instructions. He said that the First Amendment just does not protect the obscene, and that Arkansas has the power to keep it out of commerce. He said that society cannot tolerate "anything goes," and that Sirkin's arguments would lead to the open sale of tapes depicting dogs killing dogs. An objection to the last comment was overruled, and the jury filed out to deliberate.
But Sirkin would not take Long's last statement lying down. He quickly went to work online and located this year's decision in United States v. Stevens, overturning a federal statute banning videos of animal cruelty, including depictions of dog fights. Judge Neal finally said that he didn't have to read the case because he'd heard about it, that Long had been wrong to so argue, but that he didn't think it important enough to call back the jury and tell them so.
But even the jury's deliberations gave rise to what would be the last of the defense's (by one estimate) 50 motions for mistrial. Judge Hughes, who had observed the entire trial from the audience, made the unusual move of climbing into the jury box while the jury out, and began chatting with deputy who was guarding access to the jury.
"He positioned himself right outside the jury door so that when there was one occasion that the jury came back to ask a question, they could all see him there," Sirkin explained. "Hughes was sitting in the jury box talking to the deputy that was guarding the door, which was right next to the jury box, and he's a very strong anti-adult-store campaigner. I'm sure it was deliberate that he sat there like that; he wanted them to see him. He's well-known in the community and has given speeches at gatherings about how these stores had to go and they're a blight, and when the jury came out to ask its question—one juror wanted to be dismissed from the case because she said someone had insulted her about where she worked or didn't work—Jamie was really bothered, and rightfully so, because the way this guy was positioned, it made it look like he was aligned with the government and this was the flag of righteousness, and Jamie felt that he deliberately positioned himself that way and it would be a subtle influence on the jury, so he asked for a mistrial, but he didn't get it."
"When this all got started years ago, I was told about this Judge Gary Hughes who was a staunch opponent of the stores, and I wanted to question him during the trial but wasn't allowed," Benjamin later told a local television station. "He's been here all week for the trial, and the jurors have seen him sitting out there. Then, as we're sitting here tonight, I see this guy sitting in the jury box with the bailiff and a deputy as we wait for a verdict. I asked someone who it was. They told me it was Gary Hughes, and then when they were delivering the jury their dinner, they opened the door and he's sitting in the jury box looking in at the jury."
"I immediately jumped up and demanded a mistrial and told the judge that I had been told that Judge Hughes was a preacher and an opponent of the stores and now he's sitting in the jury box watching the jurors when the door is open," Benjamin continued. "I asked for the mistrial and said that I wanted him removed from the courtroom. Judge Neal denied my request for a mistrial, but did ask him to leave the courtroom and Judge Hughes did so."
About four hours later, as the Labor Day Weekend began, the jury returned with a verdict acquitting Wayne and Jimmy Philpot and their remaining corporation.
"It was a clean sweep," Sirkin declared. "This went all the way to verdict, and it wasn't one where they found them not guilty on the basis of no evidence of scienter ["guilty knowledge"] or anything like that. It was clear that they found the government hadn't proved this stuff was obscene. It was a good victory and it was an outright victory because it was a jury victory, on all defendants on both movies."
It's hard to know precisely when victory was assured. It might have started with the juror who was seen to visibly clap his hands and give a "thumbs up" when the videos were done playing, but he obviously was not alone by the time the verdict was announced.
"My theory is that it was 11 to 1 for acquittal," Sirkin assessed. "I think there was some young juror, a 24-year-old, that had never seen adult material, that started out—I mean, the two alternates were terrible, but they didn't take part in it. I think there was one juror who was having difficulty and I think finally she just gave in. I'm not sure because we never asked for the count. I only talked to two jurors. One was an African-American prison guard—there were actually two prison guards on the jury, one federal and one state, and the state prison guard just said that from the very beginning of the trial, 'I just don't think there was anything wrong with what was going on with the store and the movies,' and he said, 'There was no way I could have ever voted to convict.' I also spoke to an elderly African-American woman on the jury who gave me the best remark. After the hearing, she said to us out on the street, 'If I paid $59.95 for a DVD and I took it home and it didn't have any naked people in it, I'd be really upset.'"
The prosecutors likely misjudged the tolerance of the people of St. Francis County. It's probable that the jury felt misled by the prosecution. Finally, it's quite likely that this jury understood that the trial was indeed about their own freedom of choice.
The local County Fair came to an end that night, and so did this trial, at about the same time. Only time will tell whether this verdict also ends the campaign against them, their store, their employees, and their manager. It is most remarkable to observe that in the Bible Belt of rural Arkansas, despite a trial that denied the defense any opportunity to present evidence of comparable sales and which unfairly denied them accurate jury instructions that evenhandedly explained the law, a jury of their peers intervened to acquit Wayne and Jamie Philpot.
"These trials are for real and can result in horrible consequences for our clients—like prison," Sirkin said at the trial's conclusion. "Wayne and Jimmy Philpot are to be praised for their courage."
Fletcher Long was quoted in the local press accounts as accepting the verdict as the voice of the people: "That's the jury's verdict. This case was about community standards, and they determined that those movies met the standards in Arkansas."
The brothers Philpot are not speaking for publication.
J. D. Obenberger can be contacted at 400 Three First National Plaza, 70 West Madison Street, Chicago, IL 60602; phone: 312-558-6420;SKYPE Username: xxxlaw