TAMPA - The sixth day of the Max Hardcore/Max World Entertainment (MWE) trial opened with disappointing news, as Judge Susan C. Bucklew denied most of the defendants' motions to dismiss the charges against the defendants.
Among the grounds for dismissal denied by the judge were that the material in question - particularly the five promotional trailers on the maxhardcore.com Website - had not been presented in their full context, in contradiction to the Miller test's dictum that such evidence be "taken as a whole"; that the government had presented no evidence that the charged material - five Web trailers and five DVDs - appealed to the prurient interests of the "atypical sexual group" - dominants/submissives - to which the defense has claimed the material is directed; that Hardcore himself had no knowledge that his Websites were being hosted in Tampa; and that Hardcore had no knowledge that the charged DVDs would be sent to Tampa via the U.S. mail.
On the other hand, the judge reserved her ruling on the question of whether Hardcore or MWE had "aided and abetted" the mailing of the five DVDs in question - Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 - to Tampa by Jaded Video, which had purchased the videos from Max World in the regular course of business. In so doing, she recounted many of the arguments given by both sides yesterday (see report here), but was unclear as to when she would issue her ruling on the motion.
The court then convened a "Daubert hearing" on the expertise of defense witness Dr. Michael Brannon, although prosecutor Edward McAndrew acknowledged that since the defense had agreed that Dr. Brannon would not testify as to opinions on the community standards of the Middle District of Florida (the applicable "community" for this obscenity trial), he would have no objection to the doctor's testimony. Hence, the hearing was brief, and covered little more than the doctor's educational and professional experiences.
Dr. Brannon testified that for roughly 11 years starting in 1988, he had taught human sexuality courses at both Broward County Community College and Nova College; that his students at Nova had been Ph.D. candidates in psychology; and that during that same period, he had treated patients with sexual problems, some involving "paraphilias" - obsessions with body parts or sexual practices that cause distress - in private practice as well. Dr. Brannon stated that he currently does sex offender risk assessments for the Florida Department of Corrections, which accounts for 10% of his practice.
Dr. Brannon also testified that the five charged videos appeal to identifiable paraphilic groups, mainly dominants/submissives, but also sub-groups interested in urination, fisting and vomiting - and that such groups are considered lifestyle choices unless the activities cause distress, in which case the persons may require treatment to overcome the stressors.
After Dr. Brannon's Daubert testimony, the defense renewed its motions to dismiss, based on U.S. v. Mishkin, arguing that the charged material was intended to appeal to the so-called "atypical deviant groups," and there had been no testimony during the prosecution's case as to the videos appealing to the "prurient interests" of such groups.
Prosecutor Lisamarie Freitas countered that nothing on the maxhardcore.com Website, from which the trailers had been downloaded and the DVDs ordered, advertised the videos to such deviant groups, that the boxcovers on the site mainly depicted anal sex rather than the paraphilias, and noted that no case law says that videos that appeal to deviant groups can't also have sexual content, which could make them liable for prurient appeal to average viewers in the community.
Hardcore's attorney Jamie Benjamin responded that Dr. Brannon's testimony would help the jury understand the obscenity charges, and as to the advertising question, "To say people didn't know what they were ordering because of a picture I don't think is a valid criticism." MWE attorney Jennifer Kinsley added that it was interesting that the government was now relying on non-charged portions of the maxhardcore.com Website to support its argument on advertising, but wouldn't let the defense use those same portions to support its argument that the jury would not be able to take the site "as a whole."
At that point, Judge Bucklew, noting that "He's not a quack," admitted Dr. Brannon as an expert in the case, and brought the jury into the courtroom to hear his testimony.
After reiterating his testimony on his education and qualifications, Dr. Brannon went into more detail as to what constituted a "deviant group," defining them simply as "groups that stand out from average groups," and noting that dominants and submissives are one such group.
After watching the five videos indicted in this case, Dr. Brannon said that he consulted with colleagues who had had extensive experience with paraphilias, including Palo Alto-based Dr. Marty Klein, and a former colleague at Nova College, Dr. Timothy Moraney. Based on information from the two doctors, Dr. Brannon then went on the Internet to seek information on dominants/submissives and the subgroups within that genre, and found "more [Websites] than you can possibly imagine" - which, to him, meant more than 100 - dealing with mistress/slave play, bondage and restraints, urophalgia (consumption of urine) and vomiting.
Dr, Brannon said that in researching the paraphilias, he consulted the Diagnostic and Statistical Manual 4 (text-revised) - DSM 4 (TR) - which classifies sexual disorders, but noted that in the absence of distress over the paraphilic behaviors, the activities are not considered to be in need of treatment, but are simply an attraction. He also stated that the activities depicted in the five charged videos fit within both the DSM 4 (TR) and his own experiences with his patients as appealing to an identifiable paraphilic group. Later, under questioning by MWE attorney Dan Aaronson, the doctor said the videos would appeal specifically to fans of dominance/submission because much of the interaction between Hardcore and his partners took the form of "command language," a classic characteristic of dominance/submission. He also termed the actions where Hardcore urinates into the mouths of his sexual partners or causes them to fist each other and to induce vomiting as "the ultimate act of control" and "the essence of control," and that if the participants enjoyed such activity, it would not be considered a mental disorder, nor would it lead to a "shameful or morbid interest" in the behaviors - the classic definition of "prurient interest."
On cross-examination, Freitas brought out that the DSM 4 (TR) is not a legal document, and that the language of legal standards and psychological diagnoses are often not identical. She also asked the doctor about other paraphilias listed in the DSM 4 (TR) such as necrophilia and pedophilia, both of which the doctor acknowledged that he knew were illegal, but said that he had no opinion as to what depictions on the charged DVDs might be illegal.
After the lunch break, the defense called its final two witnesses, George Scott and Cynthia Rush, both private investigators (and former IRS agents), both of whom had found sexual material in the Tampa area and on the Internet similar to the material charged in the indictments at issue.
Scott testified that he had conducted a number of Internet searches, which he recreated in the courtroom, using search terms related to the charged material. For instance, one Google search included "pissing," "porn" and "video" and specifically excluded (as did all the searches) "trial," "juror" and "Max Hardcore," in order to eliminate all hits related to the current trial. That search brought up roughly 1.7 million pages, while "fisting," "porn" and "video" brought up 1.98 million. By contrast, a search for Heismann trophy winner "Tim Tebow" and "video" brought up just 306,000 pages; "David Cook" plus "American Idol" plus "video" brought 1.5 million pages; and the big "winner," "Rolling Stones," brought up 2.1 million. Scott said he had performed similar searches at a university library and a public library in the area, and had gotten similar results.
Scott also testified that he had viewed several DVDs purchased by his associate either in local adult stores - there are at least 54 in the tri-county (Pasco, Pinellas and Hillsborough) area - or sent to the Tampa area after being ordered over the Internet. Some titles included Pee-Tastic, Overflowing Assholes, P Is For Pleasure and German import Piss Schlampe. Scott testified that all of the titles contained material similar to that on the charged material, while Rush later confirmed that she had indeed bought the titles locally or had ordered through various Websites - including jadedvideo.com.
That testimony completed, the defense rested its case, and Judge Bucklew took up the question of what language she would use to charge the jury as to the law of the case.
Generally, the defense urged the court to take out language that referred to material that was either "obscene" or "indecent, immoral, lewd and lascivious," arguing that referring to both protected and unprotected speech in the same charge would be improper and prejudicial. The court agreed, and that extraneous language was stuck.
The defense had less success in getting the court to change language referring to the material's "acceptance" by the community to "toleration" by the community, but their biggest defeat concerned how the judge would tell the jury to define and apply "community standards."
Among other points, the judge denied defense requests that she tell the jury that the government had failed to prove community standards beyond a reasonable doubt; that the jury had a right to consider, as part of the "community," material available over the Internet; that the jury be reminded that it was to apply the community standards, not make them; and an instruction that if the jury could not determine the community standard to be applied, that it must acquit the defendants.
When court resumes tomorrow morning, Judge Bucklew will charge the jury, and the attorneys will deliver their closing arguments. It is expected that the jury will begin deliberating in the early afternoon.