Crucial Developments in Max Hardcore Trial
'Taken as a whole' remains major issue in third day of obscenity trial

By: Mark Kernes

Posted: 05/29/2008

TAMPA - This reporter has now learned an important lesson: Don't put away the notebook just because the judge has dismissed the jury for the day.

"I fail to understand why you-all are playing all these videos," an apparently exasperated Judge Susan C. Bucklew said to Dan Aaronson, one of the attorneys representing Max World Entertainment in the federal trial charging Max World and Max Hardcore with interstate transportation of obscene material.


As part of his cross-examination of postal inspector Linda Walker, Aaronson had begun to play the portions of Golden Guzzlers 7 which the prosecution had earlier refused to play, electing instead to allow the jury to see just 19 minutes of the compilation, including introductory material, copyright notices, the FBI anti-piracy warning, a promo encouraging sexually active people to get HIV-tested, a short segment of Max warning sensitive viewers not to watch what follows, and the disk's opening credits. She then proceeded to play one 11-and-a-half minute scene featuring Max, Fawna and Cloey Adams.

In all, the government played about 110 minutes from the four remaining charged DVDs - Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 - leaving more than six hours of material unseen by the jury which will be expect to judge the legal status of the four features, each of which is by law required to be "taken as a whole." It was for that reason that when prosecutor Lisamarie Freitas finished her direct examination of Walker, Aaronson asked that the remaining footage on the four DVDs be played - and after about 50 minutes of it had been played, the judge dismissed the jury for the day and made her comment.

Aaronson responded that, with all due respect, he didn't feel that he was required to disclose his trial strategy to the prosecution, while H. Louis Sirkin, also representing Max World, chimed in that the Miller test for obscenity required that the material be played.

The judge once again raised the argument that both she and the prosecution had previously made, that the DVDs themselves could be sent back to the jury room with the jury when it came time for deliberation, with instructions for them to watch the videos in the jury room as they were deliberating. But comments previously made by the prosecution regarding who would be "blamed" for making the jury watch the complete videos suggested that if that course were followed, there would be no way to know if the jury actually watched the entire videos. It was partly for that reason that the defense had insisted that the full videos be played in court.

The rapid-fire colloquy that followed Sirkin's statement was hard to follow, but at one point, the judge stated that it was the defense's choice to play the full videos, to which Max's attorney Jamie Benjamin responded that, no, it was the court's choice, because the videos had to be played at some point. Shortly thereafter, the judge cut the argument short, adjourning court for the day.

But it's not as if the day had been uneventful up until that point, however. Judge Bucklew opened the day's proceedings by noting that she was concerned about the jury having to watch more than eight hours of video.

"It would be my suggestion that we finish playing the DVD we're watching," the judge said, referring to Max Extreme 20, roughly 40 minutes of which had been played the previous afternoon, and then allow the government to play merely excerpts from the remaining disks, leaving the defense to play the remaining portions if it wished. "My suggestion is that you think about how you want to proceed," she concluded.

The prosecution then cued up Max Extreme 20 to the point where it had been stopped the day before and played the remaining 50 or so minutes, after which Judge Bucklew inquired of Ms. Freitas, "What have you decided to do?"

Freitas answered that the prosecution had decided, "We're going to play portions of the other videos."

At that point, Jeffrey Douglas, also representing Max Hardcore, renewed his objection to merely playing excerpts, arguing that not only did that course violate the Miller test's requirement that the work be "taken as a whole," but also that the prosecution's insistence that the material that it had elected not to play was "repetitive" was not a valid reason, since repetitiveness was part of the artistic message of the work, and the jury had a right to see that in action. Douglas recalled the prosecutions in the early '60s of comedian Lenny Bruce, who had incorporated the repetition of derogatory racial and ethnic terms into his act as a way of conveying to his audience the essential powerlessness of the slurs once they had been brought into the light of open discourse. Douglas also mentioned that in the Five Star Video/JM Productions trial in Phoenix last October, when the jury was polled after delivering its verdict, some jurors had said that it was the "innocuous material" on some of the charged disks that had led to their acquitting the defendants on some charges.

Douglas further argued that by allowing the prosecution to play merely excerpts from some of the charged videos, the judge was essentially conveying a message to the jury that the played segments were enough for them to base their verdict(s) on.

He also noted that computer forensics specialist James Fottrell, who had testified on Wednesday, had downloaded some 950 videos from the Max Hardcore Website, and opined that the government had not charged all 950 clips because it recognized that the jury would grow bored if required to see them all.

Douglas added that when it became known that the Phoenix jury was bored by the JM material that was being played, the government dropped charges against one video so the jury would not have to sit through a showing of it ... and that the prosecution was free to do the same thing in this case.

Finally, Douglas said, all the defense was trying to do was to comply with the U.S. Supreme Court's edicts on the matter, and that absent playing the entire videos, the defendants' fair trial and due process rights were being violated.

"It is our choice how we choose to present our case," Freitas responded, noting that although there are sometimes many hours of recorded wiretaps in drug cases, the government often plays only a small portion of the conversations. She said she understood that the videos had to be taken as a whole, but declared that the jury could watch the complete disks later.

"As to whether it's going to prejudice [one side or the other], this is not a tennis match," Freitas analogized, charging that in insisting that all of the remaining footage be played, the defense was trying to desensitize the jury to the material.

At that point, Judge Bucklew cut off argument and ruled that the prosecution could proceed with just segments of the other four charged videos ... but that was not the end of the dispute.

After the short break that followed the previous argument, the judge announced that she had received a note from one of the jurors asking that only clips of the remaining videos be played - a development that somewhat mirrored what had happened in the Five Star/JM trial. The judge then asked the defense team if it still intended to show the full movies if the prosecution failed to do so.

Douglas replied in the affirmative - but also raised the issue that the note appeared to indicate that at least one juror had prejudged the material in question, and he requested the right to voir dire that juror to see if that was the case, and also to see if he or she had discussed those views with the other jurors.

The judge denied Douglas' request at that time ... but after the luncheon recess, Jamie Benjamin raised the issue again. It seems that during lunch, Benjamin had been shown a copy of that day's St. Petersburg Times, which contained a headline reading, "Judge May Spare Jury Eight Hours of Violent Porn. " T

he article had apparently been based on the discussion that had occurred at the end of Wednesday's session, as reported here yesterday. This, coupled with the appearance of the juror's note, suggested to Benjamin that at least one juror may not have followed the judge's instruction not to read or listen to any reports of the case in the news media. Benjamin also wanted to know if the juror who wrote the note had discussed it with any other jurors, as well as where the juror had written the note and where he or she had discussed the note with the court's security officer before it was delivered to the judge.

At that point, Judge Bucklew revealed an even more bizarre occurrence. One of the U.S. attorneys had told her (and later testified in the absence of the jury) that he had been riding on the elevator with a person who was going to the 14th floor, where the trial was taking place, and that the attorney remarked to his new companion, "You're not going to watch all that porn, are you?" Receiving no answer, the attorney repeated his remark, at which point the other person disclosed that he or she was a juror in the case, although that person was not wearing the required juror identification.

The judge ruled that the U.S. attorney's statement was harmless, but his testimony impelled Sirkin to object to the attorney's having referred to the material under consideration as "porn," which Sirkin has long considered to be a pejorative term for the sexually explicit material the adult industry produces.

That usage, plus the article in the newspaper, caused Sirkin to wonder if the jury was in fact following the judge's admonition not to read or listen to any media coverage of the trial, and whether they might violate the judge's order in the future? Sirkin then called for a mistrial on that basis, which the judge denied.

Freitas proceeded to play the three remaining video clips, Aaronson played part of the remainder of Golden Guzzlers 7, and the aforementioned argument ensued. Check back here tomorrow to see what the defense team's reaction to Judge Bucklew's statements will be.

Well, I've now heard everything. The phrase "artistic message" was used in describing the puke-fest, woman-hating crap that is found in a Paul Little video. And then, in a move that should have drawn a world-class bitch slap, one of Little's scum-sucking attorneys actually had the balls to mention Lenny Bruce (comic genius) and Paul Little (dude who has to dress women up as little girls to manage a 3-inch hardon) in the same sentence. Sad, just sad.

For those of you wraping yourself in first-amendment outrage at this trial, remember that obscenity is NOT protected by the first amendment. That has already been decided by the SC. You have to prove that the material has artistic merit in order to get that protection and cmon, not even Eminence Front could muster that argument with a straight face (although maybe with a hard dick). Actually, most porn wouldn't pass that test but luckily, most porn doesn't get challenged in court. There must be limits folks, like yelling fire in a crowded theatre. I believe what this guy does is well beyond that limit and just cannot be allowed, else it taints all other porn by association.

The noose is tightening...

If expressions of passion have no artistic value, we can throw out most art, music, and literature.

Who did Max harm?

-Chuck, Vegetarian fanboy

[rant]

The fact that we can freely debate these issues, whether here on the internet or in the semi-dignified forum of a courtroom, is the truly amazing thing. No religious "police" shoving Korans down our throats. No jackbooted thugs breaking down our doors. Just you, me, a panel of twelve in Florida and a 219-year-old parchment known as the Bill of Rights.

Through most of our history, people have been subject to arbitrary judgments from remote autocrats arrogating unto themselves a pretend authority to rule based upon a "Divine Right" of kings, the "Manifest Will of God" or some other nonsense. In large parts of the world, this is still the case.

This morning, 27 Million Nepalis awoke to discover that they were no longer the subjects of a king, but Citizens of a Republic. True, the show for now is being run by a bunch of fuzzy-headed Maoists, but that's not the point. The important thing is that, by fits and starts, freedom slowly, inexorably, advances even in the most remote places of the earth.

Forty years ago, they martyred Lenny Bruce for being funny while making sense. Max Hardcore will likely be convicted by a Tampa jury for videos that are certainly in bad taste if not necessarily criminal in nature. The Judge, God bless her, has likely committed enough reversible error to enable the 11th Circuit to remand the case sometime next year, by which point a new DOJ will likely agree to drop the case, whoever wins in November. Still and all, it's progress.



[/rant]

Right now those in power would likely prefer to censor Scott McClellan for breaking ranks.

<<One among many stories - clicky>>

Fox is breaking out the "big guns" and calling him "disgruntled". Next he'll be a "terrorist" ... like Max.

No gagging allowed in the post-9/11 world.

BTW: Does anyone else think max looks a little like Tommy Lasorda in that suit?

From above:

Quote:

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In all, the government played about 110 minutes from the four remaining charged DVDs - Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19

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From Mean Gene:

Quote:

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The Vizier says there's word on the street that Jaded Video, which has been granted immunity, is still selling Max's movies including the titles that appear on the Federal indictment.


"Come on," says The Vizier. "There had to have been a deal in place."

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From Jaded Video as of 11:24 PM EDT, May 29, 2008:




Of course,the banner at the top of the main page is the best:




Anybody got Jeff Douglas' number in florida?

Missed one:

This may be irrelevant. It would depend if someone in Tampa still has access to them. Though still, innocent until proven guilty.

It undermines the credibility of the folks at Jaded as witnesses. It also undermines the Government's case if, after granting them immunity, they allow their witnesses to continue engaging in the conduct for which said immunity was granted. It further undermines the Government if they didn't allow Jaded to continue selling the charged titles and they went and did it anyway.

Even if there's nothing untoward about Jaded continuing to sell the charged titles, it makes the Government look like prize fools for allowing their star witnesses to have a "Max Hardcore Freedom Sale" banner plastered at the top of their home page.

Can one still purchase the Stagliano content in question?

My point is that I do not think this is as critical as one would think. But maybe I am wrong. Maybe the defense will submit this and the jury will declare that this is the reason for the Not Guilty conclusion. Too naive to think the trial would go this way? Yes.

Jaded still features washed out whore Tiana Lynn on the front of their website. How in touch with reality are these people?

Oh, and don't forget a U.S. Court runs one of the largest porn vendors on the West Coast. A Bankruptcy Court acts in a high-level management capacity of the Castle Superstores. The one in Phoenix is so big you can see it in the landing pattern at Sky Harbor.

Exactly my point...rather my inference. It doesn't matter that Jaded is still able to distribute the content, as they are immune. The fact that, all along, Max had not been the primary distribution arm of the operation is the weakest part of the case. For Jaded to still have a 'live' operation of said, puts the burden, not on Max, but elsewhere.

To sum it up again, Jaded can still certainly sell the materials as they haven't been charged/found guilty of a crime...strange twist no doubt, but Max will sleep easy tonight.

And yes, that's why I brought up Evil Angel content. Of course you can still buy it. Precedent has not been set against it yet.....and hopefully never. Best of luck.

I understand. And agree. But I wonder under what circumstances the immunity was granted. And I'm sure, so do you.

I could throw out big words, and italicize them too (I know the law, very well), but you know, eh, this is a message board, so, like, whatevs....

De facto is a pretty common term. Sorry you had to look it up.

It's pretty obvious how the immunity was granted: Overzealous prosecutor looking for a high profile conviction doesn't read the agreement he's slapped together because he's salivating so hard and, consequently, doesn't notice that he forgot to specify that Jaded refrain from engaging in the conduct in question (or any other criminal conduct, which is usually a component of such deals.) jaded's Lawyer, however, quickly sees that there's a loophole Jim could drive a Mack truck through, and advises his client accordingly. Q.E.D.

How was the game tonight?

Wow, you are stretching. You must read a lot of Grisham books. So did I...when I was 13.

And come to think, I always thought, 'de facto' was a Brooklyn term for 'the facts man, de facts.'

Maybe Danny DeVito will play Max in the movie...when it pours, it rains...or sumthin'...uh...maker..?

Ummm... No. However, I have read many Federal grants of immunity.

But your claim of describing these people as morons...really is similar to Dean Stockwell or Jon Voight. Do not underestimate them.

The problem with the adult industry starts with people like you. I really don't like Marc Bell, but I do respect him as he is slowly bringing mainstream profitability to the industry. (Though his IPO will be big, but will travel south , like Noof's...which is here nor there) But once Wall St picks up on it, the lap-style govt bodies will abide. It is a game. And the risk to reward ratio can be easily determined...(am I really quasi-quoting game theory?)

That's right. I'm the biggest threat to the industry there is. Forget James Dobson or Don Wildmon.

Sorry, I know nothing about Marc Bell or his IPO. I thought we were talking about Jim Jaded making a mockery of the Obscenity Taks Force. Way to change the subject.

Quote me when I said you were the 'biggest' threat to the industry. I can't find the quote. Pretty sure I never said it, but I leave it up to you to prove me wrong. So do it.

Clearly there are other offenders to the industry. But I take specific issue with you when you pull photos of a judge, bureaucrat, or whomever, then proceed to rip them, it's uncalled for. You do not know the head of the DOJ Crim. Div but yet you throw her face all over a 'xxx' message board. It's truly irrelevant, not to say boring...images are easy to make fun of, how about using your words? Or maybe some of those italics that you so obviously love? If you plan to make fun of others, step up your game.

About changing the subject on a thread...uh, you think that doesn't happen to almost every thread? Dude, you're like a Porn God or some other fag wannabe label.

You take lines out of context which is funny. Given relevant litigation, doesn't 'taken as a whole' mean something to you?

But I like the 'devoid of humor' the best.

As for who I am. I am better than you. Though Fatman thought I was Donny Long which was fun. I referred to him as Dupin (crime history lit & a fav author, but I'm not sure if he responded...than again, I do not care.

So go ahead fag, rip me down. Better yet, PM all of your buddies to gang up against me. I could not care less. I will respond no differently. I check this board when it's convenient, no matter, no less. As for you, it seems you are addicted to it. And for that, you have my pity.

When you hit 10,000 posts, I will reveal who I am. Or rather, more importantly, who/what I have done.

That is all.

But you didn't parse the above quote after I called you out on it. Too funny.

Funny is watching you come back time after time in your Snidely Whiplash moustache and cape thinking nobody's going to see through the disguise. Each time, it's the same damn thing that gives you away.

When are you going to make with the corpse photos?

Give 'em hell, cowboy.

A couple of things strike me:

1. Why is this judge having a hard time figuring out if the videos need to be played in their entirety in court? Haven't there been obscenity cases before? What was done then? Why is this even a question? Can this judge spell "precedent"?

2. What did the prosecution expected Jaded to say with respect to whether or not Max shipped the videos? How can they have expected *any* *other* *answer* than "No"? What possible value could they ever have expected Jaded's testimony to have other than to the defense?

3. Is there *any* manufacturer in the US who won't file a friend-of-the-court brief (under the name of an outside attorney of course) supporting Max arguing that a manufacturer should not face local criminal liability because of decisions by a retailer or distributor they do not control? Will a plastic bag manufacturer in MI face criminal prosecution in CA if a distributor sends a shipment of plastic grocery bags to SF or somewhere else where they're illegal?

Quote:

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3. Is there *any* manufacturer in the US who won't file a friend-of-the-court brief (under the name of an outside attorney of course) supporting Max arguing that a manufacturer should not face local criminal liability because of decisions by a retailer or distributor they do not control? Will a plastic bag manufacturer in MI face criminal prosecution in CA if a distributor sends a shipment of plastic grocery bags to SF or somewhere else where they're illegal?

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Great point.

Plus if they ARE illegal, why are they still allowed to sell it? Is that because the same film is not obscene in, say, NYC?