WASHINGTON, D.C.—In a stunning upset, Judge Richard J. Leon has denied both the prosecution and the defense request to have expert witnesses testify at the John Stagliano/Evil Angel obscenity trial.
In a written opinion which he read from the bench and which will be published in the court record at some point, Judge Leon began by reciting the three "prongs" of the Miller test for obscenity: That "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest; that the work depicts or describes sexual conduct in a patently offensive way so as to offend the standards of the community where the action is brought; and that the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The judge also referred heavily to two Supreme Court opinions: Paris Adult Theater vs. Slaton (1973) and Daubert vs. Merrell-Dow Pharmaceuticals (1993); the first setting forth certain guidelines for the use of expert testimony in obscenity cases, and the second setting forth guidelines for the use of scientific testimony in legal proceedings.
In particular, the judge quoted Paris, an opinion authored by then-Chief Justice Warren Burger (who also wrote the Miller decision), to the effect that it may not be necessary to call expedrt witnesses in an obscenity case because, "The films, obviously, are the best evidence of what they represent," and that therefore, experts would only be helpful to the jury if they provided some insight that could not be gleaned from viewing the movies themselves. It was that concept that figured prominently in Judge Leon's decision not to allow the experts to testify.
The proposed defense witnesses, Dr. Lawrence Sank and Dr. Constance Penley, had been proffered to testify as to the scientific and artistic value of the charged videos—Milk Nymphos, Storm Squirters 2 and Fetish Fanatic 5—whereas Dr. Chester Schmidt had been offered by the prosecution to rebut the testimony of Dr. Sank.
According to the judge’s ruling, Dr. Sank, a Board-certified clinical psychologist and sex therapist, certified by the highly esteemed American Association of Sexuality Educators, Counselors and Therapists (AASECT) and currently at the Cognitive Therapy Center of Greater Washington, would have opined on the therapeutic value of watching the allegedly obscene videos as part of his treatment of patients suffering from various paraphilias; notably urophilia, or an attraction to peeing. However, the judge was unconvinced, after hearing Dr. Sank’s testimony at a “Daubert hearing” on June 24, that Dr. Sank had any "greater insight" into the effects of the movies on either the "pririent interest" or on the standards aspects of the average person person in the District of Columbia community.
"Dr. Sank's testimony would do very little to assist the jury," the judge said.
Judge Leon also doubted that Dr. Sank was sufficiently knowledgeable about the use of the videos in treating sexual disorders, even though he commonly prescribed that his patients watch various paraphilic videos; nor did the judge believe that the witness appeared to be knowledgeable about studies conducted regarding this practice in the therapeutic community.
"An opinion on scientific merit must be grounded on scientific knowledge," the judge ruled, noting that at the Daubert hearing, Dr. Sank had admitted that not all therapists agree on the usefulness of having patients watch paraphilic videos, and therefore, simply because he himself used the movies in treatment did not give him enough basis to opine that the therapeutic community as a whole would recommend the practice. The judge said that he had found "no convincing evidence in the record" of Dr. Sank's expertise, and ruled that what the judge called the "prejudicial effect" of Dr. Sank's opinions would outweigh "the probative value of his testimony."
Dr. Penley, a professor of film studies at UC-Santa Barbara whom the judge described as having “impressive credentials,” would have been called as an expert on the artistic value of the material. However, the judge said that her testimony at the Daubert hearing “raises serious questions of the reliability of her opinions.” He also noted that Dr. Penley had not written any books or articles on the artistic value of pornography, and that when asked during the Daubert hearing whether all adult movies were "art," she gave what he characterized as a "non-answer," and then, when the question was turned around to ask whether she felt that there was any pornography that she thought wasn't art, she replied, "I certainly have seen films that weren't to my taste." From those responses, the judge decided that Dr. Penley had appeared to be equivocal as to whether there was any pornography that she would consider not to be artistic.
In both cases, however, the judge had left the door open, saying that if Dr. Sank could prove that watching the types of movies in question had in fact been accepted as valued psychotherapeutic treatment by the clinical community, or if Dr. Penley could make a "much stronger showing" of her expertise in evaluating whether a particular work met the Miller standard of being a work of "serious artistic value," he would reconsider his ruling on either or both of the proposed witnesses.
The judge made no remarks about Dr. Schmidt, since his testimony would have been used purely to rebut Dr. Sank’s testimony, and therefore, since Dr. Sank would not be testifying, Dr. Schmidt’s testimony would have been superfluous.
Due to the fact that the judge has ordered the attorneys involved in the case not to speak to the press, it is unclear at this time whether Stagliano's attorneys will be filing an interlocutory appeal of the judge’s ruling before the trial begins. If they don't, however, the trial itself is shaping up to be a very short one. Although AVN has not seen the proposed witness lists, it is likely that the only witnesses testifying for the prosecution are likely to be the FBI agent or postal inspector who initially ordered the movies to be sent to D.C., and perhaps that person's supervisor. Then, the portions of the movies in question that the prosecution has announced that they will play for the jury—one scene each from Milk Nymphos and Storm Squirters 2, plus the trailer to Fetish Fanatic 5—will be played, and it is likely that at that point, the government will rest its case. Then, without the experts' testimony, the only defense witness may be Stagliano himself, though it is unclear whether he will choose to testify.
Jury selection, which had been interrupted while the judge delivered his ruling on the experts, is scheduled to resume at 10 a.m. Monday, with the attorneys bringing in more jurors for individual questioning, as they began to do Friday afternoon—behind locked doors, of course—and it is possible that opening arguments in the case may be delivered Monday afternoon, though more likely, they will begin Tuesday morning.
Keep checking back with AVN.com for future developments.
