WASHINGTON, D.C.—With the John Stagliano obscenity trial safely in the rear-view, the defendants having been acquitted of all charges, the primary attorneys involved in the case—Paul Cambria, H. Louis Sirkin and Allan Gelbard—have been released from the gag order imposed by Judge Richard J. Leon during the progress of the trial, so AVN called upon them to reflect on the lessons learned, and perhaps more importantly the lessons that should be learned, from the courtroom battle.
"I just want to say, we knew our case, we knew the holes, and we recognized them when they came up," Cambria explained. "We did what we were supposed to do to turn them to our advantage, and we made the appropriate First Amendment argument at the end with regard to requisite knowledge and participation, and that's why the judge found them all not guilty as a matter of law. And that's important, by the way: He did not "dismiss the charges'; he found John and the two corporations not guilty. That's what a Rule 29 ruling is. It is much more than a dismissal motion, and that's what he did."
Gelbard, on the other hand, was quick to admit that of the three trial attorneys in the case—a fourth, Bob Corn-Revere, of the prominent D.C. law firm Davis Wright Tremaine, had acted mainly as local counsel for the out-of-state attorneys—all had logged far more hours in criminal trials than he, Gelbard, had.
"Paul and Lou are the trial lawyers here; Bob and I have different experiences," Gelbard said. "Bob is a superb lawyer and an outstanding writer. I'm a civil guy; I've got a lot of trial experience but not in criminal defense. But Paul Cambria, my hat's off to the guy. He's the real deal, and so is Lou Sirkin. When they make an objection, they know what they're doing; they know how to back it up. When they want to put a piece of evidence into evidence, they know how to lay a foundation, they know how to do it. I can't say the same thing for the government so far. I've been involved now in two federal obscenity cases, the JM case and this one. The JM case ended for my client, JM, before the trial even started, when the government couldn't authenticate a business record, so what does that tell you?"
Indeed, Cambria and Sirkin have over 75 years "in the trenches" between them, and it certainly showed during the Stagliano trial.
"I'm sorry to say that most of the lawyers in the First Amendment Lawyers group now have no trial experience at all so they don't really understand really what's going on," Cambria assessed. "Guys like Lou and I have been trying them; Lou's been practicing much longer than I have, actually, and I've been practicing over 30 years, and he's over 40-something, so we've tried plenty of cases, so when opportunities arose, a) we recognized them, and b) we took advantage of them."
"I think people in the adult industry have to realize, if they're going to be the targets of these things and they're not going to end up with really bad case law, they need real fighters and they need people who have experience and are seasoned trial lawyers or the results are going to turn out to be bad, and bad precedent is going to be set," Sirkin added. "Unfortunately—and some of the guys will get mad at me—but there's only a very few of us around now who are really, truly experienced, who have gone through these periods [of increased obscenity prosecutions]. I'm one of them, Paul's one of them, Mike Murray's one of them, and probably Mike Gross is one of them, because he's tried some cases out in Colorado, and Jamie Benjamin and Danny Aaronson in Florida are part of it too."
According to Cambria, his team's trial experience paid off even before the testimony began.
"In the opening statements, you'll recall, the government misstated the law on prurient interest, and Lou and I both objected," Cambria reminded. "We went to the bench, and the judge really was upset that we were objecting, but you have to do it to preserve it, and we did it, and he basically chewed us out. But as I was walking away, I'm saying to myself, 'Well, the prosecution isn't going to dare object when I get up there, so I'm going to just lay it out,' because I am convinced that a majority of the jurors make up their minds after the openings."
"So I saw the opportunity for a strong opening and as you recall, I gave a strong opening, and I did that purposely," he continued. "And I could see them [prosecutors] writing furiously as I was giving my opening, because I knew they wanted to jump up, because that's their tactic. I've read her [Satterfield's] transcripts in the past, and her tactic is to jump up, interrupt, break up the cadence, try to get the judge to make a decision that shuts you down, because their M.O. is, keep the jury ignorant, shock the shit out of them and keep the lawyers on their heels. That's their M.O.. And so, once he made that strong statement, I figured, well, I'm home free now; I'm gonna let it out, and I did. And she's furiously writing, and at the first break after all three openings were finished on our side, she said to me, 'Wow, you got a break there. I had nine things I wanted to object to.' I said, 'Hey, object. We objected. Should have done it.' We recognized the break and we took advantage of it."
Gelbard noted another example, as when the defense objected to the prosecution's motion to introduce Stagliano's testimony and other documents from his 2007 video piracy trial, where he and Jules Jordan had sued Canadian distributor Kaytel Video.
"You never know when a motion that's filed early in a case is going to have profound significance later on," Gelbard said. "When we got the Kaytel documents excluded, that turned out to be an incredibly significant thing. The government wanted to introduce John's testimony and the pleadings from the Kaytel action, and I was able to get those documents excluded and the testimony excluded. We wanted to be able to argue, if they were going to put that in, what it was all about, that there were federally registered trademarks that were in issue, and that all of those things had to be explained to the jury so they understood the significance of what was going on. The bottom line is, at the time, that seemed like a baby step in one of many, many motions, and it's one of the few that we won. And the judge asked Miss Satterfield at one point, 'Do you really need this?' And she said, 'No, we can do this another way.' Well, it turned out she was wrong, and that being thrown out was a very significant step in this trial that we all didn't fully appreciate at the time."
Judge Leon's demeanor was certainly something the attorneys were keenly aware of, and Gelbard found it interesting how the judge's reactions changed over the course of the litigation.
"You have to realize, initially, the judge was very hesitant to let us do anything," Gelbard recalled. "I mean, he was initially very receptive on a convivial level; he was very nice when we first met him, and up until we filed our motion to dismiss and it took him a year to decide it, he was very, very nice to everybody—and then as soon as the motion to dismiss was denied, the tenor of the court changed and the tenor of the trial changed, and from that point on, it seemed like everything we did got thrown back in our faces. And it wasn't until we actually convinced the judge that we really needed to do a jury questionnaire—because we didn't want to expose people who would really, really be offended by them to these types of materials—that things changed. I mean, you don't want somebody getting up and bolting; you don't want somebody throwing up; those types of things really bother people, and that's just an immediate mistrial. And one of the things the courts are very sensitive to now, because regardless of what you think, federal district judges are some of the most overworked individuals in our society, so they're looking at their time and their court staff's time, and the last thing they want to do is ramp one of these things up, pick a jury, start exposing the jury to these types of things, have somebody bolt and then have to start all over again."
AVN readers will recall that the press was excluded from the courtroom while the judge and the attorneys were discussing the jury questionnaires, but Sirkin provided a small window into what went on during those proceedings.
"As to what individual people said during the questioning, it's hard to remember a lot of it," Sirkin admitted. "As I recall, there were only a few in the jury panel who said they didn't like porn and couldn't be unbiased because of that, but part of the problem with that is, it's difficult to fully determine their state of mind because the description in the questionnaire of what they were going to see was not, in my opinion, all-inclusive, and so I don't know what they expected or thought they were going to see."
The judge, however, refused to allow the attorneys to ask the potential jurors detailed questions.
"We were able to ask a few questions about issues that came up as a result of the individual questions the judge asked, to follow up just on those points," Sirkin said. "We all had the opportunity to review the questionnaires and after reviewing the questionnaires, there were people who, based upon their answers, you could tell were okay, that seemed not to require any follow-up questions or anything. ... And then there were some people who, in a few instances, had indicated, even from the mild description, that they would not be comfortable or would not watch the material, and some of those were excused. There were also people who were affiliated with law enforcement in some way, who said they might find it difficult to disbelieve the testimony of a police officer or FBI agent; things like that. Each side was allowed to list what questions they wanted further responses to or further inquiry on, at which point the judge made a list and brought those people in, and that's what took up those couple of days."
Sirkin also disagreed with the judge's decision to close the courtroom to spectators and press during that questioning.
"Where numbers are used to identify people and not their personal identities, I do not know why it can't be open," Sirkin opined. "I have found, from my own experience, that people are not embarrassed to say what they feel, and in my opinion, I think there's something positive about hearing the dialogue of other jurors in dealing with sexually explicit material. I like it to be heard, because I think then there's a mutual openness that really begins. There are sensitive questions that do come up, like somebody who had a family member who was a victim of a sexual assault, or they themselves, that may bring forth some sensitive questions and answers, and that should be done in private, but I think trials are supposed to be public and I think that picking a jury is part of the public aspect of a trial, and I try to encourage that."
The prosecution apparently agreed with the judge's refusal to open the courtroom during jury selection, and Gelbard came away with the impression that the government's overall tactic was to play "Party of No" during the proceedings.
"It's rare that the government fights you on something like that," Gelbard reflected, "and the only reason that you get blowback from the government on something like this is because they've decided ahead of time that they're going to say 'No' to something just because we want it, and it seemed that many times they didn't really care if there was a good reason."
"For instance, when I explained to the judge that we wanted [Milk Nymphos actress] Lorelei [Lee] to be able to testify under her screen name, out of an abundance of caution, Bonnie Hannan just said, 'No, no, no, no, no,' and I asked her a number of times, 'Why? I mean, don't just read me back the "Well, because everybody's entitled to know her name" kind of crap; give me a good reason why?' She couldn't come up with one, but she was just going to hold to 'No' regardless of whether that actually ended up injuring somebody, and that really bothered me."
"Hannan said, 'What you're going to be doing is glorifying pornography,' and my response to that was, 'Oh, yeah; like you guys are having a problem with pornography being glorified! You're doing everything you can to tear it down here.' And she said, 'Well, it's going to glorify it because it's going to make people think she has some special privilege about testifying under her screen name,' and I pointed out, how is anybody going to know that's not her real name? I mean, there are plenty of people in this business who work under their real names; it's not like she's 'Summer Breeze' or something; 'Lorelei Lee' could easily be her real legal name. The only reason a juror wouldn't know that is if she told them, and so what was the point? It was strictly to intimidate the witness and to say 'No' just because they could say 'No,' and that was the only time in this case that I thought they really did something that was sort of underhanded."
As AVN readers know by now, after ruling that he would not allow either of the charged videos to be fully played for the jury, the government elected to show just two scenes from the movies during its case—Scene 2 from Milk Nymphos and Scene 4 from Storm Squirters 2—and had its chief witness, FBI Special Agent Daniel Bradley, summarize the remainder of the contents for the jury ... which troubled the defense attorneys greatly.
"What was so dangerous about this case is that there weren't any animals and there wasn't any rape, and it was interesting; one of the things that Bradley said was that they felt there was violence here," Gelbard recollected. "I didn't see any violence. There was nothing but playful adults smiling and laughing and giggling and I mean, this was the antithesis of violence."
Bradley testified that one of the "violent" scenes featured someone using an electric drill on a woman's vagina.
"He made it sound like they took a drill bit and drilled into a woman, but in fact, there's a toy out there called a 'drill-do,' and it's a drill where they put a dildo on the end and it oscillates and some people find it amusing," Gelbard explained. "Some people find it funny, some people find it insulting, but it's one thing to say, you know, 'they drill into a vagina'; it's another thing to say, 'they use a drill-based sex toy,' so there's an element of misleading and an element of shock value to that."
"But the other thing is, you don't get the context," he continued. "If you were to see a scene in a movie where a woman is standing over a sleeping man and she puts a gun to his head and blows his brains out, you're going to assume you've seen something significant. If you don't see the things that lead up to it, which are, this man has raped her daughter and has gotten off scot free because his brother's the judge—The Burning Bed is a classic example. But in an adult film, what you see is an introduction to somebody, and in these adult films, you also get to hear behind-the-scenes stuff, so you understand that these people actually like doing this kind of stuff and they prepare for it and they're professionals and they know what they're getting into and all of that. If you, as a person who hasn't seen adult entertainment in the past—and I remind you, a number of the jurors said they had not seen any adult entertainment in years, in the last ten years—so somebody like that, who the first thing they see is Scene 2 from Milk Nymphos, their head's going to explode. I'm sure there was a fair amount of 'Ohmigod' revulsion. But when you then take it in context, it's something different, and when somebody explains to you what you're just seen in context, it's completely different."
"And the reason the judge's ruling is so dangerous is, this is something the government has been trying to do for a long time, and because the judiciary has moved further to the right—and by that, I mean socially conservative, not politically conservative—you're getting a lot of judges who are, I think, uncomfortable playing sexually explicit material in their courts, and this plays into their own personal bias as they don't want this stuff playing in their courtrooms. I'm not going to guess what Judge Leon was thinking because it's not my place and I'm just not going to do that, but I think you have to take your hat off to a guy who issued that Rule 29 in the way he did. So that guy deserves a lot of credit for what he just did."
"This judge, his philosophy was, they can just put in parts of the movies, and if they introduce the film, that the jury would be instructed that they had to consider the material as a whole, and there would be some description of the rest of the material," Sirkin added, noting that he'd faced a similar problem in his defense of an exhibition of photos by fetish photographer Robert Mapplethorpe several years earlier. "The dilemma that comes up is, obviously, if the jury comes back with a verdict in less than the time the entire films would take to view, it's obvious that they didn't view them. He didn't care, because there was nothing that said that they had to view it all; they had to consider it as a whole, and if sufficient descriptions were made of the material, they would be fulfilling their jury duty. Again, our concern was, that really violates Virginia v. Hicklin that says a verdict is not supposed to be based upon what the jury's reaction is to a single page or single scene; you've got to take the material as a whole. He's saying that they're instructed that they've got to take it as a whole, and the Supreme Court has never specifically ruled on that."
Another problem with Bradley's testimony was that, in talking about receiving the package with the charged movies in it, he failed to account for every step in the "chain of custody"—a real no-no when it comes to admissible evidence.
"That really could have been, in the hands of a different judge, a catastrophic failure for the government because establishing the chain of custody is one of the most important elements when you're talking about a crime that involves a physical thing, and there literally is no direct evidence at all that those movies ever were in the District of Columbia," Gelbard noted. "And it was interesting, because we stayed away from asking Bradley that. He didn't even say the guy told him where he picked them up; he just said that 'Matthews came and delivered them to me in Virginia.' He didn't say, 'He told me he picked them up at the box.' In fact, we don't even know if he was the guy that picked them up at the box; someone else could have picked them up at the box. So the chain of custody was not established, and I think that would have been a very interesting issue on appeal."
Certainly, one of the most important developments during the trial was the judge's decision to exclude the government's Exhibit 9, a CD that allegedly contained a copy of the trailer to Fetish Fanatic 5, which Agent Bradley had testified that he'd downloaded from Evil Angel's website.
"Another instance where our courtroom experience came in handy was when it was clear that the government was trying to play the download with a program different than the one they used to do the download," Cambria explained, "and as a result, it was skipping and freezing and all the rest of it, which then led to a hearing. As you'll recall, it was during that hearing that I asked them the million-dollar question: 'Can you tell us that what you downloaded is exactly copied on this CD?' And his answer was, 'That would be impossible.' And that was it. The minute he said that, I knew we were golden. So again, it was important to recognize the problem with the download and then know what to do with it, which is to have the hearing and have him [Bradley] say it would be impossible—because he was honest—it would be impossible to say that it was an exact duplicate. Once he said that, there was no coming back from that, because if he can't say it was an exact duplicate, then he cannot present the jury with the 'whole' of the trailer that was downloaded, and that's what led to the judge throwing out all the charges having to do with the trailer."
"I think what was really telling here, in ruling on the excluding of the trailer, Exhibit 9, the judge used a phrase which I think he borrowed from Bob Corn-Revere's brief the night before, which was 'close enough for government work'," Gelbard added. "And I think, in this case, the prosecution thought that the movies were so shocking that they could get by with the rest of their case being 'close enough for government work.' And what they ran into were some trial lawyers, Paul and Lou, who knew how to keep that from doing the job."
Cambria had asked for a recess after Judge Leon excluded the trailer, in order to "reboot" the defense, but Sirkin admitted that there was less to that than met the eye.
"I just think that we needed time to just sit down and see what the situation was at that point without the trailer in there," he recounted. "There were no significant changes of plan. You know, something like that happens and you don't want to make some unilateral off-the-cuff movement; you really just want to sit back and say, 'OK, now that we're here, what does this mean to us or what doesn't it mean?' Ultimately, it didn't significantly change anything, but we wanted the opportunity to see if that made a difference, maybe, and you don't want to hasten something."
Of course, what it all eventually came down to was the defense arguments in favor of a Rule 29 bench verdict of acquittal, which Cambria again saw as evidence of the importance of having experienced attorneys handling the case.
"I said to the judge, 'Judge, they only proved that he had a status, that he was the president, and there are many cases talking about people who run libraries and so on; you cannot just be automatically charged with knowledge of the content of everything in your library, because if you were, in order to protect yourself, you would only handle that which you could personally review, and that would result in a massive prior restraint,'" Cambria recounted. "And I said to him, 'Judge, we already have proof that there are thousands of movies distributed by that company'—now remember, this was not a movie that John had written or directed; it was distributed by the company, and so as a distributor, he's no different than a librarian. If he were to be held to an absolute standard of being charged with the knowledge of everything that he distributes, he would be forced to review things personally to make sure that he wasn't going to be charged, and the result would be that he might be able to sell just 20 things, because that's all he could review on a weekly basis, which then results in massive censorship to the public. And so the courts have required that there be a demonstration, especially in the First Amendment area when we're not dealing with contraband.' I said that to the judge, 'This isn't a contraband business; this isn't a drug business where you just have to have any connection to it and you're in. This is a First Amendment speech area, so you have to show the requisite knowledge and participation in order to have an issue for the jury to decide,' and that's really what the judge did here: He realized that they had not established the requisite knowledge and participation, and they didn't realize the difference between E.A. Productions and Evil Angel Productions, Inc.. They had no proof that Evil Angel Productions Inc. did anything; they had no proof that John Stagliano Inc. did anything. They had proof that John was the president of all the companies, but the government never figured out that E.A. Productions was a dba; it wasn't a corporation."
"My point is, we didn't just get lucky," he charged. "We recognized the holes in their case, we ran into the holes and we knew what the plays were. Very important. And the argument was a true-blue First Amendment argument, because the government failed to prove the requisite scienter and the requisite complicity of the people involved. Clearly they had the ability to connect the entities; they just didn't. They could never have shown that John had knowledge of the product, because John just didn't have knowledge of the product. Those two movies, he didn't see those until after the indictment came down."
But for Gelbard, the acquittals had a larger meaning.
"This was the government trying to take a step down the ladder," he warned. "I mean, you talk about the slippery slope; this was quite a way down the slope. I mean, it's real easy: 'We'll get the torture guys. OK, fine. Then we'll get the bestiality guys. Fine. Then we'll get the forced oral guys or the sort-of pretend rape stuff. That's fine. Well, now where do we go? Well, now we've got to work our way down into mainstream, and that's what this case was. It was very nice to hear from some people in the media that a bunch of the jurors—at least five of them—weren't going to convict anyway, and I hope that the government hears that, that they hear it loud and clear."
The attorneys also made it clear that they very much enjoyed working together again.
"It was great to work with my old pal Louie," Cambria reminisced. "We hadn't tried a case together in a little while that was a serious and difficult case, and it was nice because we were exactly on the same wavelength. I mean, every time a mistake would happen or an objection would happen, he would look at me, I'd look at him, and bang, we were up with an objection. It was good, it was very, very good, and he's a lot of fun to work with."
But for Gelbard, the case didn't end with the judge's Rule 29 decision.
"So I'm at the airport trying to get back to L.A., and I'm standing in line at a restaurant trying to get something to eat before I get on the plane, and this girl sees my tattoo—she's standing in line in front of me—and she goes, 'That's kind of cool; what's that say?' I say, 'It's the First Amendment.' And she gets all excited, and she goes, 'Ohmigod, did you hear about the Evil Angel obscenity case that they just had here?' And I'm like, 'Yeah, I heard about it. Actually, I'm one of the lawyers on it.' And she's like, 'Ohmigod!' And she jumps up and she hugs me and kisses me and goes, 'Thank you so much! You won this for all of us!' And then she just took off and got her drink and she was gone. It was really cute."
(Pictured, l-r: Cambria, Gelbard, Sirkin)
