WASHINGTON, D.C.—Judge Richard J. Leon, at a hearing this afternoon designated as a "status conference," revealed some potential problems that defendants John Stagliano, John Stagliano Inc. and Evil Angel Productions may face when they go to trial, the date of which has now been set for July 7.
"We didn't really know what his intent was today, other than to probably set a trial schedule, but he was asking all kinds of other stuff," attorney H. Louis Sirkin told AVN this evening. "It was a very interesting day in court."
"The judge was pretty different today," Sirkin continued. "He just was challenging; he wanted to know who our experts are, wanted to know what [evidence] the defense intended to present. He said he's not so sure that the government has to show the movies, and he gave us an additional motion deadline which is a few weeks away. He also indicated he's not so sure he'll use a jury questionnaire, but we have to submit one in, I think, May, some two or three weeks before the pretrial hearing. He apparently is leaning toward not letting the lawyers participate at all in the voir dire [questioning of potential jurors] except for submitting questions to the potential questioner; he's going to do it all."
The judge's ambivalence regarding the showing of all three charged movies and the one charged internet trailer reflects an increasingly disturbing trend in federal obscenity trials, which started with the Paul Little/Max Hardcore trial in 2008 in Tampa, Fla. In that case, Justice Department prosecutors Lisamarie Freitas and Edward McAndrew told presiding Judge Susan C. Bucklew that they did not intend to show all five charged movies but only excerpts from each—"The issue is who the jury might blame for having to watch it," McAndrew said—but after the defense objected to that tactic and the judge said she would take the issue under advisement, the defense played the entire collection of movies during their case in chief, but raised the issue on appeal. Recently, the Eleventh Circuit found the prosecutors' failure to play the movies during their case not to have been reversible error, even though the Miller test for obscenity requires the finder of fact to consider the charged works "as a whole," and it is that ruling that may have played a part in Judge Leon's discussion today.
The court also set another deadline in late May, by which time the defense would have to disclose the experts it intends to testify at trial and their potential testimony, and the judge will hold Daubert hearings in early June. A Daubert hearing is used to determine if the potential testimony of an expert meets the test of generally accepted scientific theory or reasoning, and is "scientifically valid and properly can be applied to the facts at issue."
But those weren't the only warning signs detected by the defense team.
"He said he can't understand why this case would take six or seven days," Sirkin stated, "and he wanted to know why the corporation which he believes is really John Stagliano's corporation needs separate counsel, and where their interests are different. We explained to him that, well, the company could end up being found guilty, and the individual defendants, because they couldn't prove knowledge of character and content, might be acquitted, and the corporations stand to be subject to several hundred thousand dollars' worth of fines."
That dichotomy was the outcome of the two-week-long Five Star Video trial in Phoenix in 2007, where the company was found guilty of selling obscene videos but both of its principals were acquitted of the same charges.
"We tried to play it as professionally as possible," Sirkin said, "saying, 'Hey, look, we don't have any burden; the government's got to prove their case with their own evidence.' So it was a very strange, very interesting day in court. We'll be ordering the transcript of the hearing and I think that we'll make it public. It was a very interesting day."
