PENDLETON, Ky. – Henry County District Court Judge Diana Wheeler has finalized her order dismissing three counts of distribution of obscene material against Love Stuff Boutique owner Russell Van Wie, and at least one of her points should have the county prosecutor's office hanging its head in shame.
"I. FAILURE TO IDENTIFY THE DEFENDANT," reads Judge Wheeler's final Order dismissing the charges. "At no point in the trial did the Commonwealth ever present any evidence to identify that the alleged Defendant in this matter was Russell Van Wie. This is a basic requirement of any criminal prosecution and the Commonwealth failed to offer any proof."
The identification of the defendant is a topic that's covered – probably within the first week – in Criminal Law 101 at any law school, and anyone who's ever seen a TV show involving a criminal court proceeding knows exactly what it is: The prosecutor asks a witness – usually the arresting officer – "Could you please point out for the jury who the defendant is?", and the officer usually gestures in the direction of the defense table and says something like, "He's seated over there, wearing a blue suit and a blue and red tie."
Of course, the reason why this didn't happen in Van Wie's case may have had to do with the fact that when the bust was made in September, 2005, Van Wie was not on the premises, and his attorney, H. Louis Sirkin, has contended all along that Van Wie was not familiar with the contents of all of the videos for sale or rental at his store ... which leads to Judge Wheeler's second point in her Order.
"The basis for the Defendant's motion for directed verdict is that the Commonwealth failed to show that Russell Van Wie had any knowledge of the content and the character of the video tapes that were introduced as Commonwealth's Exhibit Numbers one (1), number (2) and number (3). This court agrees," Judge Wheeler wrote.
In support of her dismissal, Judge Wheeler referred to a Kentucky Appeals Court case, Heflin v. Commonwealth, which cited a 1959 U.S. Supreme Court case, Smith v. California, which itself relied on another high court case of two years earlier, Roth v. United States, the seminal modern federal obscenity case.
"The [Supreme] Court based its' [sic] reasoning on a prior ruling of the United States Supreme Court in the case of Roth v. United States ... stating 'that imposition of strict liability would in effect penalize all booksellers even though they had not the slightest notice of the characters of the books they sold'," Judge Wheeler wrote. "The Court went on to say that it did not mean that a bookseller must familiarize himself with the contents of each and every book in his store. However, the Court did indicate that to be prosecuted for a sale of obscene materials, the prosecution at a minimum must establish some awareness that the book or material would be obscene. It does not require actual knowledge of the content but it does require some indication that the owner would be aware of the content of the material sold."
The problem with the prosecution's case was a fundamental one regarding all allegations pertaining to obscene material: No one knows what it is. This was perhaps best stated in Justice Potter Stewart's concurring opinion to the acquittal of the petitioner in the 1964 case, Jacobellis v. Ohio, of having shown "hard-core pornography," where Stewart famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."
While the later cases known as Miller v. California attempted to describe what elements combine to make up "obscenity," a true definition of the term has never been attempted by the high court, for the simple reason that any such attempt at specificity would certainly run afoul of the First Amendment's clear prohibition against "abridging freedom of speech, or of the press."
Compare, for instance, an obscenity charge with a charge of bank robbery. If a person were to walk into a bank and hand the teller a note reading, "I've got a gun. Give me all your money or I'll shoot you," no one would, by any stretch of the imagination, mistake that scenario for anything other than a bank robbery.
By contrast, aside from the incredibly general Miller guidelines, all manner of depictions of sexually explicit conduct are perfectly legally acceptable – and it is likely that even the exact same sexual acts portrayed in a "wall-to-wall" video found obscene by one jury would be acquitted by that same jury if the acts were portrayed as part of a plot-driven feature, since all allegedly obscene works must be "taken as a whole." Moreover, even a wall-to-wall video found obscene in one jurisdiction could easily be acquitted in another, since the Supreme Court has specifically avoided setting national standards for obscenity, invoking rather the local "community standards" where the video was bought or sold.
Judge Wheeler clearly recognized this problem in taking the prosecution to task for failing to tie Van Wie directly to the operation of the business, thereby failing to connect his alleged ownership of Love Stuff – remember: No one identified him as the owner – to any awareness he may have had as to the content of the videos the business sold.
"In this particular case, the Commonwealth introduced no evidence as to whether the alleged Defendant was the owner, operator, or had any interest or connection with the business known as Love Stuff, where the videos were purchased," Judge Wheeler wrote. "There was no documentation including but not limited to business records or any records or pictures that were introduced to show any affiliation of Mr. Van Wie with the business known as Love Stuff. There was no testimony that the Defendant was ever seen physically in the business, nor that he was present when the videos were purchased or that he was the person the videos were purchased from at the store. According to the prevailing law, the state may rely solely on circumstantial evidence and is not required to show actual knowledge of the actual content that is claimed to be legally obscene. However, in this particular case, the Commonwealth introduced no evidence to show the Defendant was involved in the operation of the business or would have been placed on any notice as to the character of the videos or was connected at all with the business in which the videos were purchased. The only testimony pertaining to the Defendant was that he had made a general statement that, 'he has not experienced this type of problem with other businesses and that this type of business was profitable.' However, this statement alone is not sufficient to show knowledge on his behalf as to the content of the videos that were sold to the Detective. The Court can not [sic] ask the jury to assume because a business is profitable that it is distributing obscene materials."
Certainly, this was an extreme omission on the part of the prosecution in failing to show that Van Wie was ever even present at the business, but even if the state had shown that Van Wie (or any retailer) had had an active role in the day-to-day activities of an adult video store, the question of scienter – knowledge of the character and content of the material – could still easily be a stumbling block to conviction, given that most sexually explicit material is protected even under the incredibly loose (some would say "unconstitutional") Miller guidelines.
And with the prosecution's failure to connect Van Wie with the business, or even identify him in court as the defendant, Judge Wheeler had no choice but to grant Sirkin's motion for dismissal, since it would be an appealable issue if she had allowed the prosecution to reopen its case to have someone make the missing identification.
But really, the Henry County prosecutor who handled this case, whose name Sirkin would not disclose, will probably be due for a trip to the woodshed for having committed such a basic legal error.
