TAMPA - Just nine days before adult producer Max Hardcore is scheduled to begin serving his 46-month prison sentence for obscenity crimes, his attorneys have filed an appeal to reverse his conviction.
Defense attorneys Jennifer Kinsley and H. Louis Sirkin co-authored the brief, filed Wednesday with the 11th Circuit Court of Appeals. Hardcore, a.k.a. Paul Little, must surrender to authorities Jan. 29 to begin serving his sentence at Lompoc Correctional Facility.
"The appeal presents a very comprehensive challenge to every aspect of modern-day obscenity prosecutions," Kinsley told AVN. "We put in every issue and then some."
Among the issues addressed in the appeal:
Arguments based on the substantive due process rights to sexual privacy as set forth in Lawrence v. Texas and more recently affirmed in Reliable Consultants v. Earle;
The failure of Judge Susan C. Bucklew to recognize that the "Miller test" requirements to consider the charged work "as a whole" based on "community standards" was inapplicable to material posted on the Internet;
Judge Bucklew's failure to require the prosecution to "publish" (present) the full indicted DVDs to the jury, but rather allowing Justice Department attorneys Lisamarie Freitas and Edward McAndrew simply to play excerpts from each DVD;
The government's failure to prove that the defendants (Little and Max World Entertainment) knew that JKG, Inc., the movies' distributor, would mail the DVDs to the Middle District of Florida, and that the server hosting Little's websites was also located in the Middle District;
The failure of Judge Bucklew to properly instruct the jury regarding the legal issues of the defendants' knowledge of the use of the mails, their knowledge of the definition of obscenity and of the "community standards"; and,
Judge Bucklew's failure to declare a mistrial for numerous errors committed during trial, including her failure to inform any of the parties that one juror was upset because she learned that she'd been fired from her job in the middle of deliberations.
One argument that seemed to be missing from the appeal was the prejudicial effect of the defense team - Sirkin, Kinsley, Jeffrey Douglas, Jamie Benjamin and Dan Aaronson - having been forced simultaneously to defend the protected status of the full DVDs together with the protected status of the Internet trailers for the same movies. Since the five trailers combined contained only eight minutes of material, it had been suggested that the jury convicted them of obscenity based not on the trailers themselves, but because the jury had also seen the full movies from which the trailers had been edited.
"I think the jury would have viewed the Internet clips a lot differently had they not seen the full-length DVDs," Kinsley said. "However, that is not in the appeal, and was not an issue in the trial court for one reason: The prosecution has the unfettered discretion to combine any charges that it deems related into a single charging instrument, which is what they did. The law is non-existent as to the ability of defendants to be tried on various charges separately. Now, there are cases in which defendants can be separated, but there is nothing even remotely favorable in terms of separating charges."
Two of the defense arguments in the brief deal with issues rarely if ever before seen in obscenity prosecutions.
"We are challenging a couple of things that really haven't been on the radar, especially in terms of sentencing," Kinsley said, "because he got some additional months based on the income he derived from the website as a whole, versus just the five clips that were found to be obscene, so that's kind of a new issue, and he got an additional four points for depictions of sado-masochism, even though we had the testimony of the actress [Summer Luv] who said this wasn't painful and it wasn't intended to be abusive or whatever; it was fun. So there was no testimony to support a finding of sado-masochism."
Kinsley told AVN there is "zero" chance that Max can avoid serving at least some part of his sentence.
"We filed motions for stay [of sentence] with both Judge Bucklew and the Eleventh Circuit, and those got denied," she recounted. "So we've done everything we can think of to do to keep him out, but the reality is, it's not going to happen at this point."
The government now has 30 days to respond to the appeal, and the defendants will have 15 days after the government files its answer brief to file a response to that - but from that point, the schedule is unclear.
"There's been nothing said about the date for oral argument," Kinsley explained. "It could be any time they want."
The makeup of the three-judge panel that will weigh the appeal is likewise unknown.
"You don't know that until it's set for argument," Kinsley said, "and then you can look it up on the calendar and see which judges are sitting at that time," adding, "We only need two good ones."