As reported at
avn.com The Max Hardcore Obscenity Trial: Day 1
'Taken as a whole' to be a major issue in obscenity case
By: Mark Kernes
Posted: 05/27/2008
TAMPA - Practically from the moment court convened this morning before Judge Susan C. Bucklew in the case of United States v. [Max Hardcore] and Maxworld Entertainment, issues that could determine the entire course of the obscenity trial were hard-fought between the prosecution and the defense.
At primary issue was the government's contention that it was not required to show all of the footage on the five DVDs which it had charged in Counts 6-10 as being obscene, although it said it would show the entirety of the five promotional video clips - one but one under two minutes long - that form Counts 1-5 of the indictment.
Rather, argued prosecutor Lisa Marie Freitas, the government planned to play only selected sections of the five DVDs - two to two-and-a-half hours in all, including some non-sex footage - and then send the DVDs back with the jury to the jury room when it came time to deliberate, with the judge instructing the jurors to watch the complete movies and extras there.
"The issue is," Freitas' co-counsel Edward McAndrew later argued, "who the jury might blame for having to watch it" - referring to the approximately eight-and-a-half hours of material that the government had charged in its indictment.
"The government chose to buy five videos; they could have bought one," responded prominent First Amendment attorney H. Louis Sirkin, one of the attorneys representing Maxworld Entertainment, noting that the government could withdraw any of the charged videos from the case if it wanted to.
The problem for the government is the Supreme Court's Miller test, from its seminal obscenity decision in Miller v. California. That ruling requires any material charged as obscene to be "taken as a whole" - and the defense's position is that excerpts taken from a charged work hardly meet that requirement.
Moreover, it's certainly possible to infer from McAndrew's statement that he may not expect the jury to play the five DVDs in their entirety if left to their own devices in the jury room ... and if they did not, no one outside of the jury itself would ever know.
After more than 20 minutes of argument on the issue at the end of the day, Judge Bucklew stated that she would have to watch the DVDs in their entirety before she could make a decision, and the prosecution handed the five DVDs to her as court recessed, noting that it would also send out a letter stating just which portions of the DVDs it intended to play for the jury if the judge ruled in its favor.
The judge did make some rulings, however. The defense, in the person of Jennifer Kinsley, Sirkin's partner, had argued that the jury should be informed that all of the performers in the charged footage had voluntarily consented to perform the sex acts depicted, lest the jury somehow infer that any of the acts were non-consensual. The judge agreed that Kinsley could give that information to the jury.
Finally, both sides argued over whether the "community standards" prong of the Miller test required that the Middle District of Florida, the site of the trial, "accept" the videos in question in order for the defendants to be acquitted - the prosecution's position - or whether the community need only "tolerate" them - a lower standard sought by the defense. After a short but case-law-heavy argument from both sides, the judge ruled that the defense could indeed refer to the community's "toleration" of the charged material when it presented its case.
Also involved in the case are First Amendment defenders Jeffrey Douglas and Ft. Lauderdale-based Jamie Benjamin, representing Max Hardcore, and Benjamin's partner, Dan Aaronson, defending Maxworld with Kinsley and Sirkin.
But all of the above arguments served as bookends for the day, the middle portion of which was taken up in selecting the jury itself. A panel of 40 Middle District residents was assembled in the courtroom, and Judge Bucklew, who had earlier denied the defense's request to submit a detailed questionnaire to the jury pool, herself asked the majority of the questions in determining which of the panel would sit on the trial jury.
The judge's questions covered such areas as the potential jurors' employment, their backgrounds, their religiosity, their membership in any religious or secular pro-censorship groups; whether any of them regularly listened to Rush Limbaugh or Howard Stern (score: Limbaugh 1, Stern 0); whether any of them owned personal computers and had ever seen sexual material on the Web; whether any owned a VCR or DVD player (all did); and whether any regularly read newspapers or watched the news on TV (most did one or the other, often both).
In deciding what questions to ask, the judge disclosed her dislike of questions that began with, "Do you believe" and "Do you feel," and specifically rejected the defense's request that she ask whether any potential juror had any "moral convictions" regarding adult material.
But although she didn't ask the question, at least three jurors made their religiously-based dislike of the material known during the questioning.
One also said that since he had four daughters, he wouldn't be able to look at the movies and be impartial about the performers vomiting and drinking piss within them.
Another potential juror also disclosed that she was unable to look at anyone vomiting without getting nauseous herself, and she was eventually excused for that reason, with the judge agreeing with Kinsley's contention that if the woman vomited while the movies were being played, that that might prejudice the rest of the jury against the material.
In the end, 12 jurors and one alternate were selected, including one licensed practical nurse, one statistician, one insurance claims examiner, a nurses' manager, a credit manager, an attorney's assistant, a museum worker, a pawnbroker and a civil engineer.
Opening statements are scheduled to begin at 9 a.m. tomorrow - and a report on the day's activities will appear on this site tomorrow evening.
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