Evil Angel Obscenity Case Enters Discovery Phase
Feds turn over records in response to defense motion
WASHINGTON, D.C. -
Posted May 10th, 2008 06:43 PM by Mark Kernes
The government's case against John Stagliano, Evil Angel Productions and John Stagliano Inc. entered a new phase earlier this week as the feds turned over several boxes of materials to Stagliano's attorney Allan Gelbard in response to his motion for discovery.
"In general, they gave us shipping records, some records of surveillance of the company, and various other stuff," Gelbard said, noting that he was still sifting through the material.
"They've definitely been watching John for a while," he added.
The case has already taken a turn for the weird, however, as rumors circulated that the Justice Department (DOJ) had first considered bringing charges in Alabama, a state known to be unfriendly to adult material, before it finally settled on Washington, D.C..
"In the initial status conference, the judge's first question to Ms. Satterfield, the prosecuting attorney, was, 'Why are we here?'" Gelbard recounted. "To which I sort of quipped, 'Are we talking existentially, or are we talking jurisdictionally?' And he got the joke and laughed, and it was fine, and that sort of set the tone for the balance of the hearing. And she basically said it was because she's here and the department's here and her kids are here - 'here' meaning D.C. - and they wanted to do it here. And that may in fact be the case; they may have just done it for their own convenience."
The decision has puzzled legal experts familiar with obscenity cases, since the District of Columbia, as the nation's capital and the seat of government, is known as a fairly sophisticated area, and its citizenry are no strangers to congressional sex scandals. One need only recall an intoxicated Rep. Wilbur Mills' (D-Ark.) late night pursuit, in October of '74, of stripper Fanne Foxe into a tidal basin adjacent to the Potomac River, and socialite Rita Jenrette's claim to have once made love to her husband, Rep. John Jenrette (D-S.C.), on the Capitol steps in the late '70s. And then of course there are the more recent cases of Rep. Mark Foley's (R-Fla.) homosexual liaisons with congressional pages, and Sen. David Vitter's (R-La.), New York Gov. Eliot Spitzer's and several other Bush administration officials' employment of prostitutes supplied by "D.C. Madam" Debra Jeane Palfrey. Hence, the "contemporary community standards" of D.C. are likely to be somewhat more liberal than those of, say, Birmingham, Ala..
The choice apparently also puzzled Judge Richard J. Leon, the federal judge assigned to the case.
"We discussed whether he was expecting me to bring change of venue motions and so forth," Gelbard recalled, "and I said, 'Look, we're going to be providing you with a lot of very interesting, very serious, constitutionally based motions in this case, but Sable
[Communications v. FCC
] is still the law and Sable
says they can do it anywhere they want, and they've picked here, and I'm not going to waste the Court's time with a motion that we're going to lose. So when I bring a motion, you can expect that it's got some meat to it.' And he was thankful for that. But he also then looked at her [Pamela Satterfield] and said, 'You know, this isn't Kentucky or Alabama or Arkansas; we're a pretty sophisticated location here.' And she sort of nodded her head."
The venue decision was likely made, ultimately, by Brent Ward, former U.S. Attorney for Utah and currently the head of the Justice Department's Obscenity Prosecution Task Force, who was present for Stagliano's arraignment in D.C. on April 21.
"I'm sure he wasn't happy to see me again," Gelbard said, referencing his and Ward's attendance at the Five Star Video/JM trial in Phoenix in October, 2007, "and I'm sure they [DOJ] weren't happy to hear that Lou [Sirkin] and Paul [Cambria] were going to be on the case.
While Gelbard would not say what he was planning to present, at least some of it is likely to revolve around the fact that besides the two movies under indictment, Milk Nymphos
and Storm Squirters 2: Target Practice
, the government has also charged the trailer Fetish Fanatic Chapter 5
"The issues with the trailer are astronomical," Gelbard explained. "There's all the COPA stuff, but it's even more intricate than that, because what does 'taken as a whole' mean? I don't think you can pull a trailer from a Website and say that that is a 'work taken as a whole.' I don't think that it survives constitutional scrutiny under a vagueness challenge. And then there's the 'What is the community of the Internet?' question. So if this judge is what he seems to be, as reasonable as I think he is, there's going to be some ruling adverse to the government early on that they're going to want to take up to the D.C. Circuit, and that's going to end up well into next year."
The parties will next meet in D.C. on June 12 to work out a briefing schedule for the case and to look at potential trial dates - but one thing is certain: There's no way that the case will be tried before the November election, giving Republicans plenty of time to campaign on the platform that they're "tough on porn" - even if their success at trial seems unlikely.