LOS ANGELES - Shock artist Ira Isaacs was in good spirits as he walked into Courtroom 1600 at the Roybal U.S. Federal Courthouse Monday morning.
"Did you see the LA Times?" he asked. "It's got a front-page story on me, and it's even above the fold!"
Not only Isaacs, but at least three or four prospective jurors had also seen it, it turned out during questioning this afternoon ... but there was even better news to report as Judge Alex Kozinski called court to order shortly after 9 a.m.: Prosecutor Ken Whitted had decided to drop all charges against one of the movies Isaacs is charged with distributing: BAE 20. That left just three allegedly obscene movies with which Isaacs is charged with transporting across state lines: Gang Bang Horse 'Pony Sex Game', Hollywood Scat Amateurs 7 and Mako's First Time Scat.
Judge Kozinski, who in other climes is the Chief Justice of the Ninth Circuit Court of Appeals, predicted that the jury would see the approximately four-and-a-half hours of video played Wednesday afternoon, though with breaks between the action, some of the showing might spill over to Thursday morning. The judge expressed a preference for showing the movies on a higher-class video system than is available in downtown Los Angeles, and suggested that the jury might be conveyed to his courtroom in Pasadena to show the movies on his video system there.
In general, Judge Kozinski indicated that he likes to run a more relaxed courtroom, and told both Whitted and defense attorney Roger Jon Diamond that, for instance, they need not ask his permission before approaching witnesses with exhibits.
"I'm pretty relaxed about stuff like that," he said.
He also said that jurors would be allowed to ask questions of the witnesses, and indicated that he would seat 14 jurors altogether, and not designate the two alternates until the trial was over, at which point lots would be drawn to decide which two jurors would not take part in deliberations. The judge said that this was to make sure that all jurors gave the same amount of attention to the evidence.
However, before beginning to select the jury that would hear the case, the judge wanted to clear up some lingering matters. He reconfirmed that since Whitted had not filed a brief in opposition to Dr. Mohan Nair (Nah-EAR) testifying as a defense expert, for which he had been examined by both sides at a "Daubert hearing " last month, that Dr. Nair would be accepted as a scientific expert in the case, to complement Isaacs' own certification as an "art expert." Judge Kozinski also noted that he had overruled Diamond's motion to dismiss charges based on various arguments drawn from the U.S. Supreme Court's decision in Lawrence v. Texas.
Whitted then objected to a notebook of proposed exhibits which he said he had received just that morning from the defense. He noted that Judge George King, the judge from whom Judge Kozinski had taken over the case, had set a cut-off for identification of exhibits in January of this year, and that for Isaacs to produce exhibits at this late date was both a violation of the rules. He further added, "We have to have fair notice of the evidence in order to prepare our case."
Diamond countered that these were not new exhibits; that they had been introduced and furnished to the prosecution in January in accordance with Judge King's order, but that at that time, their purpose was as comparable material to the videos at issue in the case. Diamond said that now, those exhibits would be used merely to supplement Isaacs' own testimony on the state of "shock art" and would illustrate what other "shock artists" were and are creating in the genre. Judge Kozinski said he would take the arguments under advisement and issue a ruling as the exhibits were being attempted to be introduced during the trial.
At that point, both sides were ready to pick the jury, but technical difficulties with the audio-visual system delayed the start of jury selection until after nearly 12:30 in the afternoon. Judge Kozinski had arranged for a jury pool of 150 residents of the Middle District of California, and since not all of them could fit in the courtroom at one time, approximately 25-30 would be brought into the courtroom for his voir dire questions, while the rest would listen to the proceedings on closed-circuit TV in the jury assembly room, and mark down their own answers to the questions in case the prospective jurors in the courtroom were excused either for cause or through peremptory challenges. (In this case, the government would be allowed to excuse seven jurors peremptorily - that is, for reasons other than cause - while the defense would be allowed 11 such challenges.)
However, before the afternoon was over, more than 40 prospective jurors would be dismissed from the case, most of them because they answered in the negative to Judge Kozinski's initial voir dire question of whether they would be able, given the explicit nature of the material to be shown - bestiality and scatology - to sit through showings of the indicted movies and render a fair and impartial judgment of their contents.
"It would be difficult if not impossible for me to watch it," said the first juror questioned.
"I would have a difficult time watching it," said the second.
"It turns my stomach just to think about it," said a third.
Judge Kozinski questioned the prospective jurors further, asking if they could watch the movies if he required them to do so, and if, having watched them, they could dispassionately discuss what they had seen and apply to them the law as the judge would define it. When prospective jurors answered in the negative to those questions, Judge Kozinski dismissed them from the panel.
As it turned out, even after more than four hours of questioning prospective jurors on a number of subjects, when Judge Kozinski recessed court at 6 p.m., the jury had not been fully selected, and each side still had several peremptory challenges to go. The judge then announced that because of other previously scheduled matters, jury selection would resume at 3 p.m. on Tuesday.
