MARTINSBURG, W. Va.—In a currently unpublished decision in the appeal of adult video producer Loren Jay Adams following his conviction on several counts of trafficking in obscene material, the Fourth Circuit U.S. Court of Appeals has ruled that the fact that the jury in the case failed to watch all of the charged videos in their entirety was not reversible error.
"Here, the evidence before the jury was more than sufficient to support a finding of guilt beyond a reasonable doubt, despite the jury’s failure to view the films in their entirety," wrote the appeals panel in a per curiam opinion. "The Government introduced the complete movies into evidence, and played a representative portion of each video in open court. The representative portions of both 'Doggie3Some' and 'Anal Doggie and Horse' depicted women engaging in sexual acts with dogs and a horse, and the representative portion of the third film, 'Fisting 1,' depicted women being penetrated by large objects. The federal agent responsible for ordering the movies from Adams testified as to the contents of the remainder of the films. The agent testified that he had viewed each movie in its entirety, summarized the remainder of the films for the jury, and stated that the unplayed portion of each showed sexual acts similar to those contained in the excerpts."
The decision would seem to conflict with the requirement in the U.S. Supreme Court's decision in Miller v. California, which requires that in order for a work to be found to be obscene, it must, among other things, be "taken as a whole."
"The justification is that the entirety of the film was put into evidence; it just wasn't shown to the jury," noted criminal defense attorney and First Amendment advocate Jeffrey Douglas. "But the real distinctive factor is that the defense did not object."
Douglas questioned how much experience Adams' attorney, a federal public defender, had had in trying obscenity cases, but he also noted what might be construed as "judicial activism" on the part of the Fourth Circuit panel.
"The brightest part of it is, if the defense doesn't object to viewing the movies in their totality, the only way the defense can make that an error that the court of appeals can acknowledge is by saying that it is of such enormous constitutional dimension," Douglas analyzed. "However, this court went out of its way to issue that ruling even knowing it wasn't really before them because they [the defense] didn't object, so what we're left with is saying that that's dicta because it was not objected to at the lower court, but it would be nice if this never sees the light of day."
However, although the panel's decision is currently unpublished, Douglas expects that it will be.
"The default is that federal courts of appeal publish," Douglas stated. "It's just that it takes a while for it to get assigned a number, and I don't know of any circumstances where a criminal appeal isn't published, though I'm sure it happens. There is a high degree of likelihood that the government will be able to quote it and will do so aggressively."
One of the venues where the Justice Department is likely to "quote it ... aggressively" is in the Eleventh Circuit when it considers the Paul "Max Hardcore" Little appeal in October, since the government's attempt to prevent the entire movies with which Little had been charged from being played before the jury was a major bone of contention throughout the trial and is part of Little's appeal.
"It hurts Max, there's no question about that," said Douglas, who was co-counsel for Little during his trial.
Douglas said that he could understand why Adams' attorney might not have wanted to argue the "serious value" prong at trial.
"That's a hard one to make with bestiality," he opined. "It requires expert testimony and it's hard to find an expert who's willing to testify to that even if they believe it, because they don’t want, the next time they testify about substantial value, to have such testimony thrown in their face."
However, even though Adams' attorney had wanted to call a computer systems administrator as an expert to testify that a Google search would have returned "thousands of articles, movies, links, and photos" for the search terms "fisting" and "bestiality," the trial judge refused to admit such testimony.
"That's a particularly bad circuit for comparables," Douglas noted. "It may be the worst, because that's where [U.S. v.] Pryba came from, and Pryba is the absolute nadir when it comes to comparables."
In fact, the Fourth Circuit referenced the Pryba case in its decision, having decided in that case that a jury instruction charging that contemporary community standards "are set by what is, in fact, accepted in the adult community as a whole, and not by what the community merely tolerates" was acceptable and not error.
"To consider community toleration as synonymous with what a community will put up with skews the test of obscenity and invites one to consider deviations from community standards," the Pryba panel wrote, "because a community can be said to put up with a number of disagreeable circumstances that it cannot stop. The District of Columbia had over 350 murders in 1989, but to say that the citizens 'tolerated' this epidemic of homicides would misuse the word."
"The only way you can win those is by showing what's available on the internet, and that's a huge uphill battle," Douglas opined. "I've been successful doing it twice, but both times, everyone thought it was a miracle. We did it in Max after the judge said we couldn't, but then she changed her ruling and said we could, and we were all surprised about that. But they [the Fourth Circuit] essentially made it impossible. It's hard to get in internet comparables, and without internet comparables, you're doomed on bestiality."
Therefore, if nothing else, the Adams decision shows the necessity for anyone charged with obscenity to have an experienced First Amendment attorney as part of the defense team.