TAMPA - Attorneys for "Max Hardcore" (Paul Little) and Max World Entertainment yesterday filed a Motion for New Trial And/Or Judgment of Acquittal on behalf of both defendants in the U.S. District Court for the Middle District of Florida.
The defense attorneys had to quickly refile their motion after Judge Susan C. Bucklew rejected the first attempt for being too long - 40 pages, with the Court's self-imposed limit being 25. The final motion came in at just 12 pages.
But it's 12 pages of dynamite. The motion, largely written by Max World attorney Jennifer Kinsley, cites six reasons for overturning the jury's verdict of guilty on all counts, including:
1) That the federal obscenity statutes are invalid under the Fifth and Fourteenth Amendment substantive due process rights, as well as being unworkable when applied to Internet speech under the current COPA holding that the "community" for the 'Net is the entire world;
2) That the judge erred in allowing prosecutors Lisamarie Freitas and Edward McAndrew to present only excerpts from the charged videos - the "Euro" versions of Max Extreme 20, Pure Max 19, Golden Guzzlers 7, Fists of Fury 4, and Planet Max 16 - thereby prohibiting the jury from considering the material "as a whole," as well as prohibiting the defense from playing some "extras" on four of the DVDs;
3) That the Court should have recused herself from presiding over the trial after she made comments indicating that she had already formed an opinion as to the guilt of the defendants without having heard all the evidence;
4) That the Court should have dismissed the counts involving mailing of the five DVDs to Tampa on the basis that the government presented insufficient evidence that defendants knew the mails would be used to send the videos, and also that the defendants did not in fact mail the videos at all;
5) That the Court failed to properly handle several jury irregularities, including a note sent from one juror during the trial asking that only excerpts of the charged videos be played rather than the videos in their entirety, and the fact that on the evening of the first day of deliberations, one juror was informed that she had been fired from her job that day, and such firing was not brought to the attention of either the prosecution or the defense; and
6) That the government failed to show that the charged material met the federal standards for obscenity in relation to the material's target audience: the "dominant and submissive sexually deviant group."
The abbreviated memorandum that accompanies the Motion makes specific reference to the judge's failure to conduct sufficient voir dire (in this case, pre-selection questioning) to "avoid the prejudice that may result when a juror's ability to remain fair and impartial has been compromised by either outside influence or premature deliberations."
"In this case," Kinsley wrote, "the Court failed to conduct the proper inquiry into whether irregularities with the jury that occurred during both the trial and jury deliberations prejudiced individual jurors' ability to remain fair and impartial and thus deprived Mr. Little and Max World of a fair trial under the Fifth and Sixth Amendments."
As evidence, Kinsley cited the juror's note, and recalling the Court's attention to the events of the trial, where the defense had objected to the fact that the judge had refused to conduct any questioning of that juror as to whether the juror had discussed the writing of the note with any other jurors either before or after it was written, and the related question of whether the jurors had engaged in discussions about whether they had already formed an opinion as to the obscenity or innocence of the video material before all of the evidence had been presented - another no-no.
Kinsley also took the Court to task for its ambivalent attitude regarding whether the charged videos needed to be "published to" (played for) the jury "as a whole," noting that, "The Court initially agreed with Defendants and refused to permit the government to play excerpts of the works for the jury that represent a mere fraction of the entire running time of the DVDs. However, after viewing a portion of one DVD in open court before the jury, the Court inexplicably changed its mind and agreed that it was sufficient for the government to play only a small portion of each DVD instead of the whole. In explaining its ruling, the Court continued to agree that the jury must judge the material in its entirety, but has offered no explanation for how its rulings will ensure that the jury even sees the whole DVDs, much less judges the material as a whole in reaching a verdict."
Kinsley also referenced a comment made by a U.S. Attorney to a juror in an elevator, where the attorney asked the juror if the juror was going upstairs to "watch the porn," which Kinsley argues implies that the attorney was "chid[ing]" the juror "for being exposed to the allegedly obscene materials."
"The most egregious and troubling incident," Kinsley wrote, "involving extrajudicial influence on a juror occurred on the morning of June 5, 2008, the final day of jury deliberations. At 9:45 am that morning, the Court's bailiff, Mr. Towson, accepted a note from a juror requesting to speak to the Court because she had been fired from her job the night before... On two separate instances in her communication, the juror requested to talk with the Court regarding the incident... The note alleges that the juror was fired for her participation on the jury, but is silent as to what impact the termination may have had on her ability to continue deliberating."
"Although the Court received the note on the morning of the second day of deliberations," Kinsley continued, "the Court did not speak with the juror as she had requested until after a guilty verdict was returned in the case... Even more suspect is the fact that the Court never notified Mr. Little, Max World, or their counsel about the note's contents or how the Court intended to address the situation. This is particularly problematic in light of the fact that the jury indicated that same afternoon that it was likely deadlocked as to 10 of the 20 counts and then orally requested a break in court, suggesting that deliberations had become 'emotional.' Equally troublesome is the fact that, when the jury finally did reach a verdict several hours later, the juror who was terminated was crying as the verdict was read..."
"The options available to the Court were numerous; it could have disclosed the note to the parties and allowed them to individually voir dire the juror or it could have questioned her itself to assess her ongoing ability to be fair and impartial. Inexplicably, however, the Court elected to do nothing, concealing the note from counsel and ignoring the juror's requests to talk. This is a violation of Defendants' Sixth Amendment rights."
"Moreover, facts now known to defense counsel make it likely that, had the Court conducted the proper voir dire, the juror and potentially others would have been excused from jury service, necessitating a mistrial. The fact that the juror cried in the courtroom when the verdict was read is indicative of her inability to persevere in voting not guilty, and her will was likely overcome by the news of her termination. In addition, the remaining two hold-out jurors may have been more likely to compromise based on their knowledge of the juror's termination, and the Court should have questioned them as well to determine their ability to remain impartial."
Kinsley also expanded on the issue of the Court's bias against the material, noting that federal statutes require a judge to recuse her/himself "when a judge is personally biased either for or against a party" and "when her impartiality might reasonably be questioned."
"Whereas the statutes generally apply to extrajudicial situations giving rise to bias or a question of impartiality," Kinsley argued, "'when a judge's remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party,' the judge must be recused," she wrote, quoting an Eleventh Circuit case.
"After seeing only portions of the one DVD the Court permitted Mr. Little and Max World to publish in its entirety," Kinsley detailed, "at the conclusion of the May 29, 2008 trial session, the Court confronted defense counsel on the record and inquired why the defense was insisting on having the jury view the material as a whole. When defense counsel expressed that their decision was a matter of trial strategy not within the province of the court or the government to know, the Court further commented that there was nothing it had seen in the small amount of material it had viewed thus far that was of educational, artistic, scientific, literary, or political value. This comment is particularly troubling because it reflects that the Court prejudged the evidence and determined, prior to the government having rested its case in chief, that at least the third prong of the Miller standard for obscenity - that a reasonable person would find that the material taken as a whole lacks serious scientific, artistic, political, or literary value - had been satisfied. Further problematic with the Court's comment is that, at the point it was made, the Court had not seen four of the five charged DVDs in their entirety to determine whether they individually possessed or lacked value. Given that the Court had formed an opinion as to the evidence prior to the conclusion of the trial, in violation of its own instruction to the jury not to do the same, the Court should have granted Defendants' motion for recusal. Its failure to do so mandates judgment of acquittal and/or a new trial."
Finally, Kinsley took the Court to task for failing to make clear from exactly what "community" the "community standards" requirement of the Miller test for obscenity should be taken.
"[T]he prosecution must prove an identifiable community standard exists, what that standard is, and that the charged materials violate it," Kinsley wrote. "And if the trier of facts, based on the evidence, is unable to determine what the community standards are, then the defendant will be entitled to a verdict in his favor... Thus, while the prosecution is not required to introduce expert testimony or other evidence of what the community standards are in order to avoid a judgment of acquittal as a matter of law at the conclusion of its case, the prosecution assumes the risk that, in the absence of such evidence, the trier of facts will be unable to determine what the prevailing community standards are, and will therefore be required to enter judgment for the defendant on this ground alone." [Citations omitted]
During the trial, the jury was unclear as to how to assess the standards of the "community" at whom the charged videos were aimed, as evidenced by a question the jury sent to Judge Bucklew during deliberations. However, even after the judge's further instruction on the subject, it appeared that the jury still did not understand the issue, and that may have affected the trial's outcome.
The prosecution has 30 days to respond to the defense motion, and Judge Bucklew will rule shortly thereafter.