WASHINGTON, D.C.—Attorneys for defendants John Stagliano, John Stagliano Inc. and Evil Angel Productions have generally been silent regarding the content of the motion hearing held in front of U.S. District Judge Richard J. Leon on June 2, but the hearing produced at least one result: A motion filed by First Amendment attorney Paul Cambria for the defense team, challenging the judge's ruling that the Justice Department prosecutors need not "publish" (play) for the jury the entirety of the two DVDs and one trailer that form the heart of the obscenity charges against the defendants.
"We feel that the law requires that the material be taken as a whole," Cambria told AVN, "and the government refuses to play them as a whole, and the judge has indicated that he's not going to require the government to do that. And when I inquired as to whether or not he was going to let us play the remainder of whatever the government fails to play, either at cross-examination or during our case-in-chief, the response was 'File a motion' and the court would consider it. So this is an issue that needs to be resolved, and we feel pretty strongly about it."
At issue is the seminal Supreme Court obscenity decision, Miller v. California, which requires, among other things, that in judging the "obscenity" (or lack thereof) of any particular sexually explicit material, that "work" must be "taken as a whole" regarding whether it appeals to the average person's "prurient interests" or "lacks serious literary, artistic, political or scientific value." The reason is simple, and has a long legal history to back it up: If the government is allowed to pick and choose which words from a literary work or images from a magazine or movie it wants to present to the jury, that jury may not get a full picture of the work's value, or may decide that while it finds some segments offensive to the standards of the District of Columbia community, that the work in its entirety is not significantly different from other similar material found in the D.C. market.
"Indeed, as far back as Roth v. United States, the expansive nature of the jury's investigation into the content and character of the work was recognized," Cambria argued in the brief accompanying the motion. "Notably, the trial judge in Roth charged the jury that 'the books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion.'"
Until recently, it was a given that works charged as "obscene" were presented in full to the jury. However, in the 2008 Max Hardcore case in Tampa, Justice Department (DOJ) attorneys Lisamarie Freitas and Edward McAndrew for the first time argued that the prosecution need not play all five of the charged movies for the jury—aproximately eight-and-one-half hours of material—but that the DVDs should be sent out with the jury as it retired to deliberate, where it could be assumed that the jury would play the full movies and DVD extras at their leisure. However, since jury deliberations are secret, there would be no guarantee that the jury would in fact play the entire DVDs.
Or as McAndrew stated in an off-hand remark during preliminary arguments to the court, "The issue is who the jury might blame for having to watch it."
Nonetheless, Judge Susan C. Bucklew allowed the prosecutors to play only segments from the charged movies, leaving it to the defense to bear the prosecution's burden of presenting the full record of the charged material for the jury's consideration.
A similar argument was successfully made by the DOJ in the prosecution last year of Loren Jay Adams, and in an unpublished (and therefore non-binding) opinion, the Fourth Circuit Court of Appeals found that, "the evidence before the jury was more than sufficient to support a finding of guilt beyond a reasonable doubt, despite the jury’s failure to view the films in their entirety."
But according to Cambria, it will be impossible for Stagliano and his companies to get a fair trial without the court requiring that the entire movies and "extras" be played in open court during the trial.
"[I]n the instant case, even if the Court refuses to require the government to present the movies and movie trailer charged in the indictment as a whole to the jury, the mandate of Miller requires that defendants be permitted to put the entire charged works in context for the jury so that there is an assurance that any verdict rendered by the jury occurs only after the jury has judged the works as a whole," Cambria wrote. "The constitutional test for determining obscenity unquestionably requires that the charged materials be 'taken as a whole' with respect to the first and third prongs of the Miller formula, and defendants are authorized under Miller to ensure that the full review required by the Supreme Court in Miller and Roth occurs."
"If we just sent the movies in with jury during deliberations, we would be, then, at the mercy of any juror who was emphatic one way or the other about it, and that would entail a number of things," Cambria explained. "For example, as far as I'm concerned, it would deprive us of a jury trial, because the jury wouldn't see the material as a whole, and it would also deprive our clients of effective assistance of counsel because I intend, as Lou and Al do, to sum up on the movies as a whole, and the jury wouldn't know what we were talking about if they hadn't seen them yet, and so we wouldn't have effective assistance of counsel."
The "effective assistance of counsel" argument comes directly from the Sixth Amendment to the Constitution, which not only requires that "In all criminal prosecutions, the accused shall... have the Assistance of Counsel for his defence," but also that the defendant "be confronted with the witnesses against him"—in this case, the entire movies (and DVD extras) which the government claims are obscene.
Or as Cambria argued in his motion, "The right to cross-examine prosecution witnesses is a fundamental guarantee of the Confrontation Clause of the Sixth Amendment... To deprive defendants of the opportunity to cross examine government witnesses on the whole of the materials in issue would deny defendants a fundamental right and would constitute reversible error... Should the Court refuse to permit the defendants to introduce the entirety of the charged movies and movie trailer as they deem appropriate during cross examination or during the defendants' case-in-chief, the Court will have wrongly truncated the Miller test—the elements of which constitute the constitutionally-mandated method of determining whether expression is protected by the First Amendment—and will have denied defendants their Sixth Amendment rights to confrontation and a defense of their choosing."
The Justice Department would normally be given at least two weeks to respond to Cambria's motion, but with the trial due to begin on July 7, it is unclear what briefing schedule the court has actually set. However, another motion hearing and pretrial conference has been set for June 14, and conceivably, this and other issues (such as the ability of the defense to present expert testimony) will be resolved then.
The memorandum in support of the motion can be read here.