With one of the defense's motions to dismiss still outstanding, Judge Susan C. Bucklew brought the trial of Paul Little (better known as actor/director Max Hardcore) to its final stage on Wednesday, when she gave the 12-person jury the instructions they would need to consider the evidence and render their verdict, and gave the government and the defendants their opportunity to summarize the case from their respective points of view.
Most of the judge's jury instructions followed the form set down by the 11th Federal Judicial Circuit, within which the trial is taking place. She warned jurors that in their deliberations, they were only to consider the testimony and exhibits allowed into evidence, and that nothing she or the attorneys had said, including their opening and closing statements, could be considered in determining guilt or innocence.
The judge also read for the jury the charges in the indictment, which included five counts of transporting obscene materials - promotional trailers for the "Euro" versions of Max Extreme 20, Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 - in interstate commerce by use of the Internet with intent to distribute, and five counts of mailing obscene materials - those same movies - to the Middle District of Florida - specifically, to a postal inspector stationed in Tampa.
There were also, however, instructions specific to this case. For instance, the judge warned the jurors that despite the fact that in the videos they had seen, Max Hardcore and his female partners occasionally declared that they were under 18 years old, that there was no allegation that any minors had been used in the productions.
Judge Bucklew also accepted an important argument the defendants had raised the previous day, that when the jury applied the "prurient interest" prong of the Miller test for obscenity of the movies in question, they should decide whether the movies were intended to appeal to the average person in the community, or to the "intended and probable recipients" of the movies, an "atypical deviant group," as had been described the previous day by Dr. Michael Brannon to include dominants/submissives and fans of urination, fisting and vomiting. She also instructed them that if they should find that the appeal was to the "clearly defined deviant sexual group," they should decide if that appeal was to a "morbid, shameful or unhealthy" interest of that group, and warned that the jury "must not condemn [the material] by your own standards," but rather by the standards of the Middle District. Prosecutor Edward McAndrew had argued that the jury be allowed to decide the prurient appeal to both groups, based on his reading of U.S. v. Mishkin, the controlling Supreme Court case on the subject.
The instruction was important because it recognized that Hardcore's material does not, as Dr. Brannon testified, appeal to the same audience as would, for instance, a Vivid, Wicked, Red Light or Evil Angel title, and therefore should not be judged by the same standards. It also, however, proved somewhat difficult to understand, and was the subject of a question from the jury after approximately an hour's deliberation.
The judge also recognized that "freedom of expression is fundamental" to American society, but claimed that while "pornography" is legal, "obscenity" is not, and the jury must apply the accepted three-prong test to the material in question. In discussing "community standards," the judge told the jury that they may not consider or use standards they think should be accepted in the community, but rather what they feel the standards are, and noted that "mere availability [of the material in the community] is not acceptance."
Prosecutor McAndrew then took the podium - and did his best to confuse the issues through misdirection and half-truths.
"You know what you saw and you know how it made you feel," McAndrew said of the eight-and-a-half hours of video that had been played in court, thereby suggesting that the jurors use their personal standards to judge the material, rather than attempting to assess the standards of the entire community. He also compared watching the Hardcore videos to watching a murder being committed or to watching child sexual molestation, opining that the video material "was tough to stomach."
He also tried to distance himself from the substance of his own case by telling the jury that it was the defendants who had "made" them watch the full videos, after the prosecution had elected to play only excerpts from four of the videos in apparent violation of the Miller requirement that the material be "taken as a whole."
Turning to the specific charges, McAndrew displayed screen captures of the maxhardcore.com home page, bolstering his future argument on forfeiture of the defendants' assets - his home and all of his Internet domains - by noting, "Paul Little, in the fullest sense of the phrase, is all over these videos," and that several of the scenes were shot in Little's home.
Part of the defense contention is that Little did not know that his Websites were being hosted in Tampa, and that failing such "scienter," he could not be convicted of the interstate transportation charge regarding his sites. McAndrew called attention to a "traceroute" that his forensics expert, Michael Fottrell, had run on the Hardcore sites, the penultimate link of which had, he claimed, been to a Tampa-based server - although as Max World Entertainment's attorney Jennifer Kinsley later pointed out, such claim was based on Fottrell's understanding of airport city abbreviations ("TPA" for "Tampa") rather than actual knowledge. But, claimed McAndrew, Fottrell "knows where the Internet is" - a statement that is likely to come as a surprise to most Internet experts, since the Internet is "located" in the ethereal "cyberspace." But, McAndrew said ominously, Hardcore's site is "right around the corner from where you're sitting today," referring to the site of CandidHosting, Hardcore's former ISP.
In another attempt to prejudice the jury, McAndrew advised them to look at "Max Hardcore's Biography" on Hardcore's home page, which makes obviously exaggerated claims regarding Hardcore's history in the industry and the acceptance (or lack thereof) of Hardcore's movies by mainstream adult outlets.
Turning to the charges regarding the mailing of Hardcore DVDs to Tampa, McAndrew called attention to the fact that when attempting to buy one of the videos listed on Hardcore's site, clicking on a title redirects the customer to online retailer Jaded Video's Website. At that point, the customer would order the video from Jaded, pay Jaded for the material, and Jaded would send the video out to the customer. McAndrew conveniently ignored the fact that Jaded's owner, James Komurek, had testified that Jaded had purchased the Max Hardcore videos outright from Max World Entertainment for resale, that that Hardcore/Little had had no control over what Jaded did with the videos after the sale. Nonetheless, McAndrew charged that "Mr. Little knowingly caused the DVDs to be delivered by mail," and "They [Little and Max World] took steps to start the chain of distribution in motion." In other words, McAndrew was saying, the mere production of the videos in the first place made Little liable for what some third party did with them!
Worse, McAndrew called the jury's attention to the warnings that precede each Hardcore video, where either Hardcore or frequent star Catalina warn viewers that if they are offended by Hardcore's type of material, they should stop watching immediately, and should also do so if such material is illegal in their area.
"Do you know any other movies that do that?" McAndrew dissembled.
In sum, McAndrew claimed that Max World and Jaded had "joined together" to cause the videos to be mailed to Tampa. He also claimed the he had given immunity to Komurek for his testimony about his dealings with Max World "because it's necessary" - a statement that drew immediate objection from the defense team as untrue.
Finally, McAndrew revealed the government's true purpose behind the Komurek immunity and the prosecution as a whole, telling the jury, "If you stop Paul Little, you stop Max Hardcore." This too drew an immediate objection, since the jurors had already been instructed that they could not convict the defendants in order to "send a message," but rather had to focus on the defendants' culpability (or non-) for the acts they had (or had not) committed.
McAndrew then turned his attention to the "obscenity" of the videos, reading the definition of "prurient interest" from the jury instructions, and echoing the late Supreme Court Justice Potter Stewart, "You know it when you see it." Also, referring to Dr. Brannon's testimony on the videos' appeal to "deviant sexual groups," McAndrew dismissed his expertise by saying, "You watched the videos and you don't need someone to tell you what you saw." And as to Brannon's testimony that dominance/submission, urination, fisting and vomiting were all referred to in psychology as "paraphilias," McAndrew noted that sexual attraction to children and photos of children was also a "philia" - pedophilia - and said, "Just because somebody has a philia doesn't mean they can look at it" - implying that there was something similarly illegal about the Hardcore material.
"Mr. Little degrades [and] mistreats women," McAndrew declared, and while admitting that "some of it is fictional," he said that obviously the urination and vomiting was not, and "insertion of a speculum, that is downright sadistic... This is nothing but crass commercialization of the degradation of women." He also dismissed the testimony of actress "Summer Luv," who'd said that Little had always treated her with respect and had thoroughly discussed with her the action to take place in her then-upcoming scenes, diverting the jury from her sworn statements by saying, "You can't deny what you saw in that scene... He's been pushing the limits for years to make money" - a statement that also drew an objection, and after the jury had been sent out of the room, a motion for mistrial, based on McAndrew's "sending a message" mantra and mention of pedophilia in connection with the charged videos. The judge denied the motion, but gave the jury additional instruction that no minors had appeared in the charged videos.
It was then the defense's turn for summations, beginning with Kinsley's discussion of the term "knowingly" which had been used throughout the indictments and the law as a requirement for conviction. She noted that the government must prove all of its allegations beyond a reasonable doubt, including the defendant's knowledge of the acts committed. Did Little know that the maxhardcore.com pages were on a server in Tampa? The government hadn't proved it. Speaking of both the trailers and the videos, "Was this material purposely sent into this community? Certainly not!" She pointed out that Fottrell had needed a "traceroute" program to trace the path of the material to Tampa, and that there was no evidence that either Little or Max World had used such a program to find out that information for themselves. Similarly, she hit home the fact that Max World and Little had no reason to believe that Jaded would either send the "Euro Versions" of the videos to Tampa, nor that they would use the U.S. mails to do so, especially since all shipments between Max World and Jaded had been by UPS. She noted that Jaded had been immunized from prosecution for sending the videos to Tampa, and that, "They have allowed Jaded, by giving this immunity, to continue to sell to the Middle District of Florida... We have Mr. Little and Max World Entertainment on trial here today for something Jaded did."
Max World attorney H. Louis Sirkin spoke next, warning the jury, "This is not a case you determine on what you believe," but rather on the evidence solely. He noted that despite one juror's note to the judge asking that the jury be permitted to watch just excerpts from the charged videos rather than their entirety, the jury had to watch the full videos, and the defense had shown them because the government would not.
"Those acts depicted on the screen were probably distasteful to all of you," he admitted, but observed that the jurors, like most people, probably had not discussed their own sexual practices with their friends and neighbors, and hence might not be in a position, considering the government's lack of evidence, to judge the standards of the community. He further noted that the government had presented no evidence on who the "average person" is, and that possibly the jurors weren't "average persons."
As to "prurient interest," Sirkin told the jurors that they must concentrate on who the intended recipients of the charged material are, which Dr. Brannon had said were a specific set of groups who would not find the material to be "morbid, shameful or unhealthy." He also recalled the testimony of the private investigators who had found several similar DVDs being sold in the community or by Internet retailers willing to ship them into the community.
"It's there for you to make a choice" whether to look at it or not, Sirkin said.
Sirkin also argued that the government had been selective in what videos it charged from the maxhardcore.com Website, and observed that they hadn't played the other 950 video clips that Fottrell had found there, implying that as to the trailers, the jury was not in a position to consider them as "the whole" of the site. He also noted that the government had waited 15 months after downloading the trailers before ordering videos from the site and indicting Little and Max World - and not Jaded Video, who had actually sent the DVDs.
Referring to the testimony of Melissa Nicoletti aka Summer Luv, Sirkin refreshed the jury's memory that she had said she was treated well by Little, that she was "play-acting" and didn't feel that she had been degraded by the material, but that the government was saying, "You're not allowed to make that choice," meaning both Nicoletti's to perform and the videos' audience to watch that performance.
"Say to the government, 'You showed me nothing ... and since you didn't, you failed'," Sirkin urged.
The final defense speaker was Little's attorney Jeffrey Douglas, who claimed that, "Almost everything about this prosecution is backwards" - and that therefore, he would start at the end by urging them to find the defendants not guilty.
Douglas pointed to George Scott's Google search demonstration to show that material similar to the acts in the charged videos were readily available to Middle District residents through the Internet, but that in any case, "If you started to watch it and you didn't like it, you turn it off and you walk away," adding that, "Nobody who saw those previews could [buy] the movie by mistake."
Simply because the jury may have been repelled by the videos was not enough for conviction, he said, but that they would have had to feel a sexual response of some sort to find that they appealed to the prurient interest. "No sexual response, no prurience," he stated.
But Douglas went even further, arguing that the charged movies have political value.
"The offensiveness Mr. McAndrew focused on ... is the politically incorrect depiction of women," which Douglas said in itself is evidence of serious political value. He compared the actions of the Max Hardcore character to "Archie Bunker" of "All In The Family," noting that audiences had found Bunker's bigotry and chauvinism humorous, and observing that in real life, Carroll O'Connor, who played Bunker, was anything but a bigot. Douglas castigated McAndrew for continually referring to Little as "Max Hardcore" when Hardcore was simply a character Little plays.
"This is play-acting; this is not reality," he said. "The entertainment of depicting a bigot ... had political value" in O'Connor's/Bunker's case, and as well in Little's/Hardcore's case, and he decried "the inability of the government to distinguish between a character and a real person." As examples, he noted that McAndrew had referred to Nicoletti's testimony as "Summer Luv's testimony," and had urged to read "Max Hardcore's" biography as if it were Paul Little's.
Max Hardcore, he said, "is barely a cartoon of a human being," and that serious political value doesn't necessarily have to be as staid as CNN.
"Lowbrow entertainment can have serious political value too," he said.
Referring to the Jaded Video situation and Komurek's immunity, "What the government has done is, it has prosecuted the wrong guy," Douglas declared. He also opined that there was a reason for that was simple: "The government doesn't care about the community standards of the Middle District of Florida; they don't care that Jaded Video is still shipping adult DVDs into the District last month, last week, yesterday, today and probably tomorrow - They care about stopping Paul Little."
"No one in America is forced to see these movies except you," he concluded. "The choice was made by the government." Referring to the trailers, he charged, "The idea that that 30-second silliness could be declared obscene is ludicrous."
McAndrew had reserved 15 minutes to respond to the defendants' arguments, but it was clear that the power and eloquence of Douglas' closing had thrown him off his stride. He argued that by the definitions in the law, it didn't matter that Max World had shipped the charged videos to Jaded by UPS; the mere fact that the Max Hardcore site linked to Jaded was enough to tie Little and Max World to the mailing to Tampa. He also claimed that there was no evidence that Jaded was still sending adult videos into the Middle District of Florida, contradicting Komurek's own testimony that his company would continue sending even the charged videos to Tampa unless the videos were declared obscene in the District.
Regarding the defense's point that the government had presented no evidence of the local community standards - a requirement for an obscenity finding - he claimed, "For us to tell you what you standards are ... is insulting and we wouldn't do it."
McAndrew also disparaged the videos themselves and the value of the requirement that the jury consider each video "as a whole."
"It was the same stuff over and over again," McAndrew opined. "Did you find value after the eighth hour." And as for why the government had only wanted to show excerpts from the charged videos, "We want to protect speech that has meaning, that has value," he claimed, warning, "If you want the protection [of the First Amendment], you have to contribute something meaningful... It's as plain as the difference between right and wrong."
If that's so, however, it would seem to be contradicted by the fact that as of this writing, the jury has been deliberating for almost six hours.