Prominent First Amendment attorney H. Louis Sirkin was a bit depressed over his loss last October in the Jennifer Dute case before Superior Court Judge Patrick Dinkelacker, but after Monday's argument before the Ohio Court of Appeals for the First Appellate District, Sirkin is now confident that Dute will at least get a new trial, and may even be set free altogether.
"The judges were very receptive," Sirkin summarized. "I feel real good about it. I hope it will get reversed, and in another go-round, I think we'd beat 'em."
Dute and husband Allen were charged with selling obscene material: Four home-made videos starring Jennifer and several partners which the couple marketed as Jennifer 2, 3, 6 and 7. At the trial's end on Oct. 22, Allen was acquitted, but Jennifer was sentenced to one year in prison, and in a move that was contrary to normal court procedure, the judge immediately remanded Jennifer to the county jail pending appeal.
But Monday's argument gave Sirkin a new hope that Dute would finally receive justice.
"On the issue of the comparables, they were tremendously receptive, and the during-trial publicity and the failure to really voir dire was basic and elemental," Sirkin said, referring to the trial court's refusal to admit tapes recently acquitted in the Elyse Metcalf case as comparable to the Dute tapes. "Also, I argued that whenever there's publicity that deals with evidence that would not be admitted in the trial, there's a presumption of [jury] prejudice, and there was no question: The record reflects that seven of the 12 jurors responded that they had seen something about the case on the news, but the court would not permit us to get into what they heard; merely asked, 'Do you have any problems with this case?'; not asking them whether they were prejudiced in any way as a result of what they heard. The [appeals] judges were appalled by that."
Sirkin also called the judges' attention to a comment by the trial court regarding the First Amendment.
"I said that obviously the court misunderstood the purposes of the First Amendment, when it said the First Amendment is not to be used as a sword but as a shield - we all know otherwise," he recounted.
Sirkin also noted the lengths to which the state had gone to entrap his clients, by making it appear that the Dutes were not sending the tapes to an address within Hamilton County, as they had previously pledged not to do, when in fact the addresses were just inside the county line.
"I'm hoping for a reversal and a remand for a new trial, because first of all, we would not get this judge; it would have to be reassigned," Sirkin apprised. "Number two, I'm hoping that they will rule [to admit] the comparables. Beyond that, it's an absolute on the pre-trial publicity issue. Even the state had to admit I was correct in my statement of the law."
A decision is expected by mid-May, and Sirkin said that the Dutes were cheered by the news.
Those who would like to send letters of encouragement to the victim can write to Jennifer Dute, #53837, Franklin Pre-Release Center, P.O. Box 23651, Columbus, OH 43223.
