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Max Hardcore – Free At Last!
By: Mark Kernes and Jared Rutter
05-18-2004
LOS ANGELES - On May 17, veteran director Max Hardcore and his attorney Jeffrey Douglas finalized a deal with the Los Angeles City Attorney's office that, after a three-year battle, hundreds of hours of effort and tens of thousands of dollars in legal fees, dismissed all obscenity charges against Hardcore for his feature Max Extreme 4.
"After scores of court appearances and likely in excess of $100,000 of taxpayer money and a jury trial resulting in a 6-6 split in October of 2002, the City Attorney's office finally gave in and gave up," Douglas announced. "A corporation [owned by Hardcore] was allowed to plead to a public nuisance exactly as the other ill-founded obscenity prosecutions filed in 2001 were resolved. Max will pay a straight fine, rather than a 'donation' to the 'Victims Restitution Fund' as others before him have done, which we decided would be better. We agreed not to sell the movie in California for three years, even though the movie has already been edited to eliminate the scenes [that allegedly brought about the prosecution]."
"I finally fuckin' beat the legal system downtown," Hardcore told AVN.com in an exclusive interview. "It was a long fight. Three years ago, in June, 2001, the original indictment came down. It was a battle, it really was, and we were fighting them every step of the way. This is a total unequivocal victory for us."
But until May 17, Hardcore and Douglas were still greatly concerned about Hardcore's future.
"It was a frivolous waste of public resources," Hardcore said. "They intended to refile the charge and take me back to court one more time—as if they hadn't wasted enough money already!"
Douglas shared Hardcore's elation – and his concerns.
"This prosecution was a tragic waste of money, time and other valuable resources when government has no money for basic services," Douglas noted. "Yet the malicious need for
L.A.P. D. to justify assigning six detectives and the City Attorney to justify assigning several lawyers to persecute the adult industry required this abomination to drag on and on and on. It is a great blessing that Max has the integrity and the guts to stand up for what is right, despite the huge amounts of money he has been bled. I salute him for that.
"Even after the first evenly-split jury rejected the city's attempt at criminalizing sexual speech, the city still hung onto its pointless crusade, " Douglas continued. "Though the City Attorney Rockard J. Delgadillo's office wouldn't even negotiate with me, no one could or would explain why the prosecutors were refusing to be reasonable despite the fact that the prosecution was, according to testimony from the first trial, admittedly based upon one sentence in the entire movie.
"The prosecution was malicious. The initial three-count complaint, all based on that one line, was one of the most irresponsible charging documents I have ever seen. Because of the spinelessness of the judiciary, it took over a year to get one baseless count dismissed, another year to get the second count thrown out, and now finally we got what our offer was on the very first day. This is what we offered the prosecution on the very first day."
The original indictment in the case charged Hardcore with child pornography, based on the fact that one mature-looking actress in the feature claimed on tape to be only 12 years old.
"I'm really sensitive on this one," Douglas groused, "because that count was based on a distorted version of the penal code section, following the theory of the [federal Child Pornography Prevention Act], that a character underage could qualify as child pornography, without the language in the statute to support it."
Also in the original indictment was a pandering obscenity charge, based on a flyer that was included with the tape, which was purchased by an undercover police officer using an assumed name.
"The trial court took that away from the jury and dismissed that because there was no evidence that the advertising promoted the material as being obscene," Douglas explained.
That left solely the obscenity count, which resulted in a trial that lasted more than a week, as reported in detail on AVN.com, ending in an evenly split jury, at least one of whose members had never seen an adult video in her life. The prosecution's case was handled ably by Assistant City Attorney Michele Anderson, with Organized Crime Vice Division Detective Steven Takeshita assisting her every step of the way – a fact that made Douglas even more incensed.
"This case confirmed what everybody in the First Amendment legal community has known for a long time: The Los Angeles Police Department's Organized Crime Vice Division Pornography Unit has no respect for the law," Douglas opined. "Detective Takeshita testified that the case would not have been filed but for one sentence, in complete disregard for the requirement that each component of the three-part obscenity test be established in the movie taken as a whole.
"In a different case, Takeshita recently testified he does not routinely view X-rated movies, adult magazines or adult websites. He has no idea how the community standard has evolved, assuming that he ever knew. He even testified that if half the population of California paid money to see and otherwise endorse the film, it would not change his views on what should be filed as obscene, even though the community standard comprises two-thirds of the state-defined obscenity test. This prosecution was an abomination and it's taken too long to have the right result, and that is, the case dismissed."
However, Douglas was hopeful that perhaps this case spells the end of routine obscenity prosecutions in Los Angeles.
"The fact that the city dismissed the first two [2001] cases so quickly and so easily is a sign that the city recognizes that these prosecutions are essentially pointless," Douglas said. "The only reason this one dragged on was because of, I believe, the animus that L.A.P.D. has toward Max, but given the incredibly few number of cases they have done over the years and the way these cases ended, I don't think there's going to be any more resources expended on this.
"I think this is the death knell of city obscenity prosecutions, at least for material that is commonplace, not ordinarily outside the – I can imagine them prosecuting rape movies or things like that. I can't imagine them going on this effort again."
For his part, Hardcore hopes to return to a more sedate life of making adult features without the stigma of an obscenity prosecution hanging over his head.
"I think it's amazing they gave up," he commented, "but it's a real relief. "
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