Are New Isaacs Indictments A Response to MIM Pressure?

LOS ANGELES—One topic not covered in AVN's recent analysis of religious conservatives' pressure on the U.S. Department of Justice to bring more obscenity indictments is the fact, often overlooked by laypeople, that each count of an indictment is a separate "charge," and each "guilty" verdict on each count is a separate "victory" to be claimed by the Justice Department.

Those facts may explain why, instead of simply taking producer/director Ira Isaacs to trial on May 17, as previously scheduled, on the three obscenity charges that have been pending against him since 2007, Child Exploitation & Obscenity Section (CEOS) Chief Andrew Oosterbaan and trial attorney Michael W. Grant have elected to bring new indictments against Isaacs, two charging sales as recently as April 7, 2011. Maybe for the beleaguered Justice Department, it is all about the numbers.

The new (or "superceding") indictments, which were returned on April 14, incorporate as Counts Two through Four the three previous charges against Isaacs for having "knowingly used a facility and means of interstate or foreign commerce, and an interactive computer service in and affecting interstate and foreign commerce, for the purpose of selling and distributing" the three previously-charged movies, Gang Bang Horse 'Pony Sex Game', Mako's First Time Scat and Hollywood Scat Amateurs No. 7. That first movie and most of the second were played for the jury empaneled by Judge Alex Kozinski on June 11, 2008 before the judge abruptly suspended the trial after the Los Angeles Times published a story charging that Kozinski owned a website on which appeared humorous sexual material, some of it hardcore. A mistrial in that case was eventually declared, followed by more than two years of motions by Isaacs' atorney, Roger Jon Diamond, seeking to have Isaacs adjudicated "not guilty" based on the argument that Kozinski had not had a valid reason for the mistrial declaration, and that further proceedings would amount to double jeopardy. Diamond's motions were eventually dismissed.

The new indictments add three more charges relating to Hollywood Scat Amateurs No. 7: Those of Isaacs allegedly having "engaged in the business of producing with intent to distribute and sell, and engaged in the business of selling, including, but not limited to" that movie, "which has been shipped and transported in interstate and foreign commerce" (Count One); that Isaacs "knowingly used an express company, common carrier, and interactive computer service, for carriage in interstate commerce and delivery to a location outside the State of California, packages which contained the following obscene pictures and film" (Count Five); and that he "knowingly caused to be delivered by mail according to the direction thereon to an address located in Los Angeles County, non-mailable obscene material" (Count Six) on January 25, 2011.

The new indictments also add four more movies to the mix, as Counts Seven through Ten, alleging that the following movies were also mailed to a Los Angeles County address: Hollywood Scat Amateurs No. 38 and Trailers (both also on January 25), and Japanese Doggie 3 Way and Hollywood Scat Amateurs No. 10 (both allegedly delivered on April 11, 2011).

Finally, the new indictment, as did the old one, seeks to forfeit from Isaacs and his companies, Stolen Car Films and LA Media, "any property, real and personal, constituting or traceable to gross profits and other proceeds obtained from the offenses" and/or "used and intended to be used to commit and to promote the commission of the offenses."

In any case, Isaacs has yet to be arraigned on the new charges, which makes his long-postponed retrial much less likely to occur as scheduled.

"May 2 was already set a long time ago for a pretrial conference date," Diamond noted. "I would assume, although I haven't heard anything officially, that that date will be transformed into an arraignment date for Ira to be arraigned on the amended or superceding indictment, and I would assume that if I asked for—and we would do this—ask for more time to prepare, given the fact that they've added movies, I would think the judge would have no problem granting that request."

But just because the trial date may be pushed back for several months doesn't mean that Michael W. Grant, the new prosecutor on the case—he replaces Obscenity Prosecution Task Force attorney Bonnie Hannum, who herself replaced Task Force prosecutor Kenneth Whitted—isn't still arguing about the proposed voir dire questions submitted by both sides to be asked to prospective jurors in the case to gauge their impartiality and mindsets.

"This judge likes both sides to always agree on everything or to get everything hammered out in advance," Diamond explained, "so he always orders that whatever we're filing be a conjoint document of both sides, and then it has to explain where we agree and where we disagree. So the government initiated this by sending out a number of proposed jury questions, and then asked if I had any objection to theirs, and I said no, but I also added some, and they accepted some of mine and have objected to others. The judge could theoretically hold a hearing where he would hear argument on that issue, or he could just do it on his own. Now, we went through all this before Kozinski, so we're going back over the same stuff."

However, in what appears to be the government's final submission of proposed jury questionnaire questions filed last Friday, Grant has included, in the 24-page document, fully 10 pages of objections to questions Diamond would like to ask prospective jurors—and some of the objections appear to be quite revealing of the prosecution's trial strategy.

For example, take proposed jury question #63: "Would watching a horse ejaculate upset you?"

"This question is misleading and improper," Grant argues, "because it focuses the perspective [sic] jurors on their reactions to what the evidence may be, instead of properly instructing them to place aside their own feelings and apply the 'average person' and 'community standards' concepts and is designed to offend certain prospective jurors in an attempt to cause them to believe they cannot be fair and therefore should excuse themselves or be excused from service. Furthermore, this question serves no other purpose but to attempt to ascertain the advance reactions of the jurors to the issues at trial and to frighten the jury with graphic details of what the evidence might show." [Citations removed here and below]

Of course, the argument is incredibly disingenuous, since it's well known that the vast majority of potential jurors will never have discussed their sexual tastes with their neighbors or other community members, so in all obscenity trials, most jurors will in fact have no idea what type of sexual activity appeals to (or offends or upsets) the "average person," nor will most jurors have any idea what potentially-available sexual materials either meet or fall below the "community standards" of their community, even if they have lived there all their lives. So in such cases, the only thing most jurors will have to guide them in trying to determine whether a particular depiction is "obscene" is each juror's own tastes, so it's certainly fair to ask if they would be upset by seeing a horse ejaculate. If not, fine, but if so, by what standard, then, would a juror who's never discussed his/her sexual tastes with other community members decide whether such others would be upset (or offended) by such an act? Yet by the prosecution's own argument, that's exactly what the jurors will be expected to decide!

More subtly, however, Grant references "reactions to what the evidence may be." Since one of the movies named in the indictment is Gang Bang Horse 'Pony Sex Game', during which women can clearly be seen attempting to jack off a horse, Grant seems to be suggesting that the govenrment will take a route previously blazed by prosecutors in the Max Hardcore, John Stagliano and Five Star Video trials, during which prosecutors successfully argued that the Supreme Court's dictum in Miller v. California, that the material in question be "taken as a whole," didn't actually mean that the entire charged movies had to be played for the jury. If the presiding judge in Isaacs' trial, Judge George King, permits the government to employ this tactic, it will present an excellent opportunity for Isaacs' to appeal if a "guilty" verdict is reached—at an even greater expense for him than the past three-plus years of legal wrangling have already cost him.

In any case, question #70—"If permitted to sit as a juror in this case would you be willing to watch without shutting your eyes movies in their entirety that graphically and explicitly deal with such activity as bestiality (woman and horse having sex) and movies dealing with women engaged in sexual activity that expressly involves and graphically involves feces?"—elicits a similar response, where Grant states, in part, "The question is also designed to offend prospective jurors in an attempt to cause them to believe they cannot be fair and therefore should excuse themselves or be excused from service."

Trouble is, the movies charged in the Isaacs case are substantially different from anything the jurors are likely to have seen, and the argument that the government's proposed question #50—"During the course of this trial, if you are selected to serve as a juror, you will be shown videos which depict sexually explicit activities so that you may determine if they meet the definition of obscenity. Several of the videos are at least one hour in length.  Would you be able to look at depictions of explicit sexual activities as part of your service as a juror?"—would hardly prepare the average juror for the material he/she will see, and it's not beyond the realm of possibility that a juror might have a visceral response to seeing the material that could prejudice other jurors and cause a mistrial. But apparently, "better safe than sorry" isn't in the government's lexicon.

Also interesting is proposed question #66: "Do you believe that notwithstanding the prohibition in the First Amendment to a Congress passing no law abridging the freedom of speech[,] that Congress may abridge freedom of speech with respect to sexual matters?"

Grant's response? "This question is argumentative and misleading," he begins. "Obscenity is not protected by the First Amendment." That's a lie, of course. The Supreme Court may (in fact, does) agree with Grant, and that's what Judge King will be bound by, but the jury is not, as attorneys Larry Walters and the ACLU of Florida recently argued here. However, as Grant points out, the question might encourage jurors later to look up the language of the law, and that might confuse them if Judge King tells them something different.

Also of interest is a development regarding the Daubert hearing held by Judge Kozinski back in 2008, after which he ruled that Isaacs would be able to testify as an expert in his own defense to the artistic value of the movies he had made and distributed. But with the change of judges after the mistrial, a new Daubert hearing was requested by the government and ordered by Judge King, which hearing took place on January 28 of this year, and Diamond is none too happy with the results.

"We're no longer using the expert we had arranged to have testify at the previous trial," Diamond explained, "so we were down to Ira being an expert, and there were two categories of movies involved in this case at the time of the Daubert hearing. One category was the movies he made himself, and the others were ones that he just sold but did not make, so what the judge did is to rule that Ira doesn't qualify as an expert; he doesn't teach art, he's never written anything about art; he's never subjected any theories to peer review, so the judge felt he didn't qualify as an expert... So now, we have no experts. However, the judge more or less compromised by stating in his Order that although Ira would not be able to testify as an expert, he could offer lay opinions as a lay person, because he's the person that made at least some of the movies in question, so he would be able to testify as to his intent, et cetera, et cetera. So it comes pretty close to allowing him to testify as an expert, but only with respect to the movies he actually produced. So that's pretty much stripped our defense."

How this all will play out at Isaacs' trial is very up-in-the-air ... and as noted above, it may be more than a year before anyone finds out just how any of these new developments will affect Isaacs' future.