WASHINGTON, D.C.—Of course, the big news from the John Stagliano obscenity trial was the judge's ruling, shortly after noon, which if upheld by higher courts would set First Amendment jurisprudence back at least a half-century... but more on that later.
Tuesday morning started out quietly enough, with Judge Richard J. Leon taking the bench at 11:05 a.m. and asking all counsel to identify themselves for the record. Prosecutor Pamela Stever Satterfield gave the first portent of things to come when, in response to a question from the judge as to how long she expected her first witness—FBI Special Agent Daniel Bradley—to take on the witness stand, she replied that she wasn't sure, since she didn't know whether she would be playing a full scene from one of the charged videos—Milk Nymphos and Storm Squirters 2—or only part of a scene. She even suggested that the court might want to take its lunch break in the middle of a scene and return to it later that afternoon.
Satterfield also requested that any witnesses in the courtroom be asked to leave ("sequestered") until it was their turn to testify—a request that the defense had no trouble agreeing with—but then she also made a courtroom Motion in Limine to prevent the defense from raising what she referred to as a "consenting adults" defense; that is, arguing that since the movies were only intended to be seen by consenting adults, that Stagliano should be acquitted on that basis alone no matter what the jury thought of his movies.
Stagliano's attorney Paul Cambria objected, and when the judge (who expressed some disappointment that Satterfield's motion hadn't been raised before trial) asked him for his argument, Cambria said that the prosecution had completely misunderstood the "consenting adults" concept.
According to Cambria, the prosecution's idea was something that the defense might bring up in a post-conviction motion, but that if his side argued anything like that, it would simply be that the movies were intended to be seen by adults, not children (as the government seemed to charge in Count 7 of the indictment), and that it was adults only who should be seen as forming the "community standard" by which the videos should be judged.
After that exchange, and a brief warning from the judge that juries don't like to see attorneys interrupting each other with objections, especially during opening statements, defense attorney H. Louis Sirkin again voiced his objection to the judge's previous ruling that the prosecution need not show the complete movie to the jury, arguing that Federal Rule of Procedure 106 required that they do so.
"I think you're wrong, Mr. Sirkin," the judge replied, adding, "This has been the most contested argument in any case I've ever seen."
With that, Judge Leon brought the jury into the courtroom, read the indictment to them, gave a few instructions as to how the jury system operates, and allowed the prosecution to begin its opening statement.
Satterfield's associate Bonnie Hannan delivered the statement, beginning, "This case is about crossing the line," and about making adult videos available top minors. She claimed that the charged movies and trailer "exceed the bounds of decency," and that the movies depict such extreme acts as using syringes to inject milk into a person's anus, squirting, ass-to-mouth and the frequent use of close-up shots of sex with no plot.
Hannan said that she would show "representative portions" of the films, and that an FBI agent (Bradley) would describe the rest for the jury. She also charged that the trailer for Fetish Fanatic 5 could be viewed by children. However, when she launched into an explanation of the three-prong Miller test for obscenity, the defense quickly objected to her use of the word "lustful" in describing what "prurient" means.
Although the discussion of the objection took place at the judge's bench and could not be heard by the audience, prominent First Amendment attorney J.D. Obenberger later explained that in a Washington state case called Brockett v. Spokane Arcades, the U.S. Supreme Court had decreed that "lust" was not a descriptive term for "prurient," since many people lust—including former President Jimmy Carter, who admitted to feeling lust in his heart for certain women.
In any case, the judge overruled the objection, and Hannan continued describing the Miller test, then began to trace the events leading up to the present indictment, beginning with the Los Angeles Vice Squad's visit to the 2007 Adult Entertainment Expo.
When it came Cambria's turn to open, he made it very clear that there had never been any attempt to distribute the charged videos and trailer to children, but that the FBI agent had purposely downloaded the offending trailer in a public place so that children could have seen it, and that that was the basis for Count 7 of the indictment.
"Those movies are exactly what they are supposed to be: They are adult entertainment," Cambria stated flatly, adding that they were "designed for adults who make a personal decision to acquire the movies," and that they "do not contain illegal sex acts" or depictions of force or violence, and were all made with consenting adults.
Cambria further noted that the burden of proving the movies obscene remains with the government.
"They bear the burden of proof [and] it has to be done with evidence," Cambria reminded the jury, declaring that the evidence would "put the material in context. He also reminded the jury that the District of Columbia is an area with "many, many cultures" and that "The whole community is what is represented here" on the jury.
Evil Angel attorney Allan Gelbard used his time to remind the jury that three distinct entities had been indicted: John Stagliano himself, his company John Stagliano, Inc., as well as Evil Angel Productions, Inc., the last being Gelbard's client. He further noted that each defendant was entitled to separate verdicts on the charges—an important distinction because, as reported yesterday, the defense contents that "Evil Angel Productions, Inc." no longer exists as a corporation, and didn't even when the FBI began its investigation.
Gelbard went on to state that the evidence would show that Evil Angel Productions, Inc. had "nothing to do with" either sending the movies to D.C. nor with posting the trailer on the website, and that the corporation had been suspended by the California Secretary of State in 2005.
"All these FBI agents, they can't figure out which corporation to indict," Gelbard summarized.
When it was Sirkin's turn, he explained the formation of John Stagliano, Inc. in 1994, and explained the company's method of distributing movies owned by others, a system which he compared to the more common distribution system where a company makes a movie and another distribution company buys the rights to it and keeps the profits from any copies that are sold.
And as for the movies themselves, "Someone brought [them] into your community," Sirkin charged, adding that even when Agent Bradley viewed the charged trailer in a "restaurant/bar," there was only one other patron in the place, and that no children saw the material.
But today's real fireworks took place just after Judge Leon recessed the trial for lunch, and began to read to the attorneys his ruling on the defense's June 2 motion to require that the entire movies be played for the jury.
Sadly, the judge recited his ruling quickly, and there is currently no written copy of it available to the press, but the gist of the judge's ruling was that the concept of the "work, taken as a whole" applies only to the first and third prongs of the Miller test; that is, the questions of whether the charged material appeals to the prurient interest, and whether it has any serious literary, artistic, political or scientific value—questions that, Judge Leon said, the jury could answer without having to be shown the entire movies. In fact, although he said that he would be sending the two DVDs with the jury into the jury room when they begin their deliberations, the jurors didn't necessary have to watch the full movies even then; that they could conceivably return their verdict in less than the five-and-a-half hours it would take to watch both Milk Nymphos and Storm Squirters 2.
"It does not follow that a jury must view every frame of a movie... to judge it as a whole," the judge declared.
The judge quoted from the unpublished Eleventh Circuit opinion in the Max Hardcore case as well as several other rulings to bolster his decision, but the bottom line was, in terms of judging prurient appeal and whether the movies had serious value, "That task in no way requires the jury to look at the work in its entirety... Miller does not require that the jury review every frame of the charged work."
Moreover, Judge Leon ruled that that the defense would be allowed to show some portions of each movie that were not played for the jury by the prosecution, but they "do not have the right" to show the complete movies because that would be "a meaningless consumption of time."
"I will not allow the defendants to play the full-length movies in their entirety," he again stated, although he agreed that he would allow them to play certain portions during their cross-examination of witnesses to put the testimony in context.
As stated earlier, if this ruling is upheld by a higher court, it would be a major setback for adult entertainment—a subject that will be dealt with in more depth once a written copy of the judge's decision can be obtained.
After that ruling, the rest of the day was something of an anticlimax. Satterfield called FBI Special Agent Daniel Bradley as her first witness, and he testified how he had managed to get the two movies sent to an FBI undercover post box by ordering them from a Baltimore-based business, BTMMailOrder.com.
Bradley also described how the investigation began, in January, 2007, based on reports he had received that the charged movies and trailer contained depictions of "sexual violence, bondage and squirting," and that Bradley himself had gotten involved in July of that year as part of his work with the Justice Department's "Adult Obscenity Initiative."
Bradley also testified about his investigation of the corporations John Stagliano, Inc. and Evil Angel Productions, Inc., suggesting that both are still on the California Secretary of State's rolls—although the documents that allegedly verified that were dated in 2005.
With that, the remainder of the afternoon consisted of playing the second scene from Milk Nymphos, starring Annette Schwarz, Lorelei Lee and Jon Jon—that is, after Satterfield and other court officials figured out how to use the court's DVD player, which led Obenberger to describe the group as "the task force that couldn't shoot straight."
But eventually, the scene was played, all 50 minutes of it, featuring Jon Jon as a milkman (complete with white straw hat) being seduced by the two women into having sex with them while they pumped milk into each other's asses by means of a long tube, then took turns having the milk squirt out into their mouths. And while it may ruin the suspense, we can reveal that the scene ended with cumshots into each gal's mouth, whereupon they kissed and passed the cum between them. The end.
Court will resume tomorrow morning at 10 a.m. with a continuation of Agent Bradley's testimony.