LOS ANGELES—As a result of discussion which began after a hearing before U.S. District Judge George H. King on Aug. 2, the attorneys for the U.S. Department of Justice and accused First Amendment violator Ira Isaacs have agreed to waive the time constrictions of the Speedy Trial Act, and have agreed that Isaacs' trial for selling three allegedly obscene movies will begin on February 8, 2011.
Prosecutor Bonnie Hannan, late of the John Stagliano obscenity trial in D.C., and Isaacs' attorney Roger Jon Diamond on Wednesday filed a "Joint Status Report," agreeing among other things that the "factual and evidentiary stipulations in effect at the previous trial will remain in effect." This refers to Isaacs' first trial before Ninth Circuit Chief Judge Alex Kozinski, which was cut short when a Los Angeles Times story exposed the fact that Kozinski was the owner of a humorous sexually oriented website, which led Kozinski to recuse himself from the proceedings and to declare that a "manifest necessity" existed for a mistrial in the matter. The parties spent the better part of two years fighting over whether the mistrial was properly declared, and whether Isaacs' case should be discharged under the Fifth Amendment's bar to double jeopardy. That battle ended with the U.S. Supreme Court refusing to accept certiorari on Isaacs' appeal.
In the original trial, the parties had stipulated that if called to testify, various FBI agents and California law enforcement officers would relate the circumstances surrounding their purchases of two of the movies still at issue—Gang Bang Horse Pony Sex Game and Mako's First Time Scat—and also that if convicted, Isaacs would agree to forfeit to the government all proceeds from the aforementioned movies, as well as three others—Hollywood Scat Amateurs 7 (also still charged in the current pleadings), Laurie's Toilet Show and BAE 20—and all rights and interests in three of Isaacs' websites, ScatMovies.com, ScatCinemax.com and StolenCarFilms.com.
Surprisingly, the government also has declined to challenge Judge Kozinski's ruling that Isaacs himself can testify as an expert on art, and has likewise agreed to accept Dr. Mohan Nair, the subject of a Daubert hearing over which Kozinski presided, as a defense expert on whether the material has serious scientific value, though Hannan will object to some of the doctor's Daubert testimony concerning the availability of similar materials in the Los Angeles area and the fact that such material has "allegedly" led to a decrease in the incidence of rape. The defense meanwhile has continued to stipulate that the prosecution may use anti-porn activist Dr. MaryAnn Layden to testify on the issue of "paraphilias," and to rebut Dr. Nair's scientific value testimony. The government also asked to submit an updated witness and exhibit list before trial, and requested a Daubert hearing to determine the expertise of proposed witness and South Park creator Trey Parker regarding the Miller test's "serious artistic value" prong.
But that's pretty much it for the agreement, and the bulk of the Joint Status Report is taken up with a recitation of a previously introduced proposed Table of Exhibits which the defense wants to use in its case, to which the government objects. For example, Hannan wants excluded from the trial art works by famous and not-so-famous artists Marcel Duchamp, Piero Manzoni and Roy Lichtenstein; novels and other literary works by Henry Miller, Allen Ginsberg and James Joyce; the movies Team America, South Park the Movie and Jackass the Movie; various blog posts ... and of course, the world-famous YouTube video "Two Girls, One Cup." Hannan variously argues that the material is either inadmissible hearsay, "irrelevant, confusing [and] misleading," or "an indirect attempt to admit comparable materials when in fact, these materials are not comparable."
Finally, the Report puts the court on notice that the parties will be arguing whether the Ninth Circuit decision in U.S. v. Kilbride, the CAN-SPAM case, means that Judge King and/or the jury in the case will be considering the charged works from the standpoint of their acceptance in the "community" of the Central District of California, or the nationwide "community" approved in the Kilbride case.
Keep checking back to AVN.com for further developments in this important First Amendment case.
