TAMPA - This reporter has now learned an important lesson: Don't put away the notebook just because the judge has dismissed the jury for the day.
"I fail to understand why you-all are playing all these videos," an apparently exasperated Judge Susan C. Bucklew said to Dan Aaronson, one of the attorneys representing Max World Entertainment in the federal trial charging Max World and Max Hardcore with interstate transportation of obscene material.
As part of his cross-examination of postal inspector Linda Walker, Aaronson had begun to play the portions of Golden Guzzlers 7 which the prosecution had earlier refused to play, electing instead to allow the jury to see just 19 minutes of the compilation, including introductory material, copyright notices, the FBI anti-piracy warning, a promo encouraging sexually active people to get HIV-tested, a short segment of Max warning sensitive viewers not to watch what follows, and the disk's opening credits. She then proceeded to play one 11-and-a-half minute scene featuring Max, Fawna and Cloey Adams.
In all, the government played about 110 minutes from the four remaining charged DVDs - Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 - leaving more than six hours of material unseen by the jury which will be expect to judge the legal status of the four features, each of which is by law required to be "taken as a whole." It was for that reason that when prosecutor Lisamarie Freitas finished her direct examination of Walker, Aaronson asked that the remaining footage on the four DVDs be played - and after about 50 minutes of it had been played, the judge dismissed the jury for the day and made her comment.
Aaronson responded that, with all due respect, he didn't feel that he was required to disclose his trial strategy to the prosecution, while H. Louis Sirkin, also representing Max World, chimed in that the Miller test for obscenity required that the material be played.
The judge once again raised the argument that both she and the prosecution had previously made, that the DVDs themselves could be sent back to the jury room with the jury when it came time for deliberation, with instructions for them to watch the videos in the jury room as they were deliberating. But comments previously made by the prosecution regarding who would be "blamed" for making the jury watch the complete videos suggested that if that course were followed, there would be no way to know if the jury actually watched the entire videos. It was partly for that reason that the defense had insisted that the full videos be played in court.
The rapid-fire colloquy that followed Sirkin's statement was hard to follow, but at one point, the judge stated that it was the defense's choice to play the full videos, to which Max's attorney Jamie Benjamin responded that, no, it was the court's choice, because the videos had to be played at some point. Shortly thereafter, the judge cut the argument short, adjourning court for the day.
But it's not as if the day had been uneventful up until that point, however. Judge Bucklew opened the day's proceedings by noting that she was concerned about the jury having to watch more than eight hours of video.
"It would be my suggestion that we finish playing the DVD we're watching," the judge said, referring to Max Extreme 20, roughly 40 minutes of which had been played the previous afternoon, and then allow the government to play merely excerpts from the remaining disks, leaving the defense to play the remaining portions if it wished. "My suggestion is that you think about how you want to proceed," she concluded.
The prosecution then cued up Max Extreme 20 to the point where it had been stopped the day before and played the remaining 50 or so minutes, after which Judge Bucklew inquired of Ms. Freitas, "What have you decided to do?"
Freitas answered that the prosecution had decided, "We're going to play portions of the other videos."
At that point, Jeffrey Douglas, also representing Max Hardcore, renewed his objection to merely playing excerpts, arguing that not only did that course violate the Miller test's requirement that the work be "taken as a whole," but also that the prosecution's insistence that the material that it had elected not to play was "repetitive" was not a valid reason, since repetitiveness was part of the artistic message of the work, and the jury had a right to see that in action. Douglas recalled the prosecutions in the early '60s of comedian Lenny Bruce, who had incorporated the repetition of derogatory racial and ethnic terms into his act as a way of conveying to his audience the essential powerlessness of the slurs once they had been brought into the light of open discourse. Douglas also mentioned that in the Five Star Video/JM Productions trial in Phoenix last October, when the jury was polled after delivering its verdict, some jurors had said that it was the "innocuous material" on some of the charged disks that had led to their acquitting the defendants on some charges.
Douglas further argued that by allowing the prosecution to play merely excerpts from some of the charged videos, the judge was essentially conveying a message to the jury that the played segments were enough for them to base their verdict(s) on.
He also noted that computer forensics specialist James Fottrell, who had testified on Wednesday, had downloaded some 950 videos from the Max Hardcore Website, and opined that the government had not charged all 950 clips because it recognized that the jury would grow bored if required to see them all.
Douglas added that when it became known that the Phoenix jury was bored by the JM material that was being played, the government dropped charges against one video so the jury would not have to sit through a showing of it ... and that the prosecution was free to do the same thing in this case.
Finally, Douglas said, all the defense was trying to do was to comply with the U.S. Supreme Court's edicts on the matter, and that absent playing the entire videos, the defendants' fair trial and due process rights were being violated.
"It is our choice how we choose to present our case," Freitas responded, noting that although there are sometimes many hours of recorded wiretaps in drug cases, the government often plays only a small portion of the conversations. She said she understood that the videos had to be taken as a whole, but declared that the jury could watch the complete disks later.
"As to whether it's going to prejudice [one side or the other], this is not a tennis match," Freitas analogized, charging that in insisting that all of the remaining footage be played, the defense was trying to desensitize the jury to the material.
At that point, Judge Bucklew cut off argument and ruled that the prosecution could proceed with just segments of the other four charged videos ... but that was not the end of the dispute.
After the short break that followed the previous argument, the judge announced that she had received a note from one of the jurors asking that only clips of the remaining videos be played - a development that somewhat mirrored what had happened in the Five Star/JM trial. The judge then asked the defense team if it still intended to show the full movies if the prosecution failed to do so.
Douglas replied in the affirmative - but also raised the issue that the note appeared to indicate that at least one juror had prejudged the material in question, and he requested the right to voir dire that juror to see if that was the case, and also to see if he or she had discussed those views with the other jurors.
The judge denied Douglas' request at that time ... but after the luncheon recess, Jamie Benjamin raised the issue again. It seems that during lunch, Benjamin had been shown a copy of that day's St. Petersburg Times, which contained a headline reading, "Judge May Spare Jury Eight Hours of Violent Porn."
The article had apparently been based on the discussion that had occurred at the end of Wednesday's session, as reported here yesterday. This, coupled with the appearance of the juror's note, suggested to Benjamin that at least one juror may not have followed the judge's instruction not to read or listen to any reports of the case in the news media. Benjamin also wanted to know if the juror who wrote the note had discussed it with any other jurors, as well as where the juror had written the note and where he or she had discussed the note with the court's security officer before it was delivered to the judge.
At that point, Judge Bucklew revealed an even more bizarre occurrence. One of the U.S. attorneys had told her (and later testified in the absence of the jury) that he had been riding on the elevator with a person who was going to the 14th floor, where the trial was taking place, and that the attorney remarked to his new companion, "You're not going to watch all that porn, are you?" Receiving no answer, the attorney repeated his remark, at which point the other person disclosed that he or she was a juror in the case, although that person was not wearing the required juror identification.
The judge ruled that the U.S. attorney's statement was harmless, but his testimony impelled Sirkin to object to the attorney's having referred to the material under consideration as "porn," which Sirkin has long considered to be a pejorative term for the sexually explicit material the adult industry produces.
That usage, plus the article in the newspaper, caused Sirkin to wonder if the jury was in fact following the judge's admonition not to read or listen to any media coverage of the trial, and whether they might violate the judge's order in the future? Sirkin then called for a mistrial on that basis, which the judge denied.
Freitas proceeded to play the three remaining video clips, Aaronson played part of the remainder of Golden Guzzlers 7, and the aforementioned argument ensued. Check back here tomorrow to see what the defense team's reaction to Judge Bucklew's statements will be.