Prosecutor Takes Courageous Stand on Obscenity
Book Review: Scoundrels to the Hoosegow
CHATSWORTH, Calif. -
Posted May 23rd, 2007 00:00 AM by Mark Kernes
We wish we knew how Morley Swingle stacks up, philosophically, against other county prosecutors around the country. His new book "Scoundrels to the Hoosegow: Perry Mason Moments and Entertaining Cases from the Files of a Prosecuting Attorney" is well-written and, yes, entertaining ... but that's not why we're reviewing it on AVN.com. It's because of Swingle's philosophy.
Certainly, adult industry members, not to mention a number of viewers of adult material, generally have no cause to love (or even like) prosecutors, and all too many of us have had closer contact with them than we would have liked.
But in 1992, AVN
's news-clipping service – this was, of course, way pre-Internet – brought Mr. Swingle to our attention. Seems Donna Miller, president of the local chapter of the American Family Association (AFA) and a resident of Cape Girardeau, Mo., Swingle's bailiwick, brought him a videotape which she claimed was obscene, and wanted prosecuted – in part, she said, because her husband was a porn addict.
"Needless to say, the first thing I was required to do was to watch the movie," Swingle recounts in Scoundrels. "I have forgotten its title, but the film had little or no plot and featured lots of explicit sex scenes between consenting adults. I could see where it would offend many people, but I was not particularly bothered by it, nor was I sure that my community would want someone prosecuted criminally for renting this particular tape to an adult. I especially was not convinced that a jury of twelve people would make a unanimous finding that a person I would charge with a crime should be criminally punished for providing it to another adult."
Of course, many prosecutors in America, in part fearful that a pro-censorship group like AFA would create a ruckus over the situation, would consider the same factors that Swingle did ... and then go ahead and file charges against the video store owner and/or clerk anyway.
What Swingle did, however, is what sets him apart from the mass of public (non-)servants: He obtained a list of the 235 locals who had just completed their three-month stint of jury service, and who therefore would not be eligible to serve on the jury that would consider the obscenity charges that Swingle might yet bring against the offending tape. Swingle then polled that group, asking questions like:
"Do you feel that adults should be prosecuted for watching, in their homes, a sexually explicit movie of an adult man and woman having sexual intercourse?"
Not too surprisingly (at least to modern American AVN
readers), a mere 7% of those responding to the poll answered "Yes," while a whopping 92% said "No."
Better still, however, were two further questions:
"Do you feel a sales clerk, working for a video store, should be convicted of a crime (one day to one year in jail or a fine of up to $1,000) for renting this movie to an adult?"
"Do you feel the owner of the video store that carried this movie, if he knew they carried it, should be convicted of a crime (one day to one year in jail or a fine of up to $1,000) for renting this movie to an adult?"
Admittedly the owner didn't fare as well as the clerk. While a full 86% didn't think the clerk should be prosecuted, a respectable 75% would give the same free pass to the owner.
Similar questions were asked about a tape depicting oral sex between an adult man and woman, and the percentages were similar.
Frankly, we were impressed. Although this was well before the politicization of many city and county prosecutors' offices – not to mention the recent attempts to do the same to U.S. attorneys – by religious pro-censorship groups, Swingle's action in polling his "constituents" was, to our understanding, unprecedented, and – again, to our understanding – remains unique in the annals of state and local obscenity lore.
Swingle's heroism deserved comment, which we did both in a pair of articles in the September and November, '92 issues of AVN
, as well as in a personal "thumbs up" letter from this author to Swingle. (The AVN articles will be uploaded to the "Law" page of AVN's soon-to-be-revamped website.)
That was all we heard from Swingle over the ensuing 15 years (though admittedly, AVN stopped using a clipping service and we did not search the Internet for any mention of him) until a letter from him arrived in the spring of '06 requesting permission to use both the letter and the two articles in a forthcoming book. We agreed, and the result can be found in Scoundrels to the Hoosegow.
But it isn't Swingle's decision to base one of his chapters around AVN's treatment of him that impels us to recommend his book, although it is the reason we're doing a review in the first place. We think Swingle represents the very best qualities a local prosecutor should have: An adherence to the highest standards of justice and fair play, and a refusal to knuckle under to pressure, whether it be from local politicians, local police or advocacy groups like AFA.
There are numerous examples of Swingle's moral character in the book, including his refusal to bargain down or outright dismiss speeding tickets written in his jurisdiction; his treatment of abused women; his prosecutions of child predators, and voyeurs who videotape their peeping; and even his difficulties in bringing a murderer who had once been a popular police chief to justice. It's all told with wit and rigorous analysis – and plenty of quotes from famous jurists of the past, on whom Swingle relies for moral and legal guidance. He's also a Mark Twain fan, and that never hurts.
The closing paragraphs of his "AVN
chapter" provide perhaps the best insight into the mindset of an intelligent mainstream adult – who in this case also happens to be a powerful local prosecutor – when confronted by both the unwanted pressure of an ardent anti-porn evangelist and the embarrassing plaudits of an adult industry magazine:
"What a bittersweet development. One of the nicest compliments I had ever received was emblazoned upon the editorial page of a publication in which I'd be embarrassed to have anyone see my name. Praise from Adult Video News was not exactly a tribute one would trumpet in a campaign brochure."
"Still, I had followed the law. In the process of doing my sworn duty to uphold the Constitution, I had helped educate the public about a complicated legal case. I had protected the rights of private citizens from overzealous censorship by refusing to be pressured into turning from prosecutor to persecutor. I was proud of myself. But not proud enough to share the Adult Video News articles with very many people.
What a marvelous replacement Morley Swingle would make for, say, Sen. Matt Bartle in the Missouri legislature! Scoundrels to the Hoosegow is published by University of Missouri Press, 2910 LeMone Blvd., Columbia, MO 65201.