Do Adult Businesses Have The Right Not To Be Framed?

WASHINGTON, D.C.—If there's one thing adult producers worry about when shipping their product around the country, it's this question: "If I (or my distributors) ship to City X, what are the chances that the recipient is an FBI agent or postal inspector who'll try to have me busted there?"

Examples of the problem are rife: Evil Angel shipped product from Los Angeles to the District of Columbia, and they were indicted in that territory rather than the one where the shipment(s) originated. Likewise, Extreme Associates were indicted in their "destination city," Pittsburgh, rather than the "origin city," L.A.. Likewise Max Hardcore: Shipped from California; tried in Tampa.

In a sense, the latest indictment, against Barry Goldman, proves the point: The Justice Department originally tried to have him prosecuted in socially conservative Montana until a federal judge called their attention to the fact that not only did Goldman have no contact with Montana other than (allegedly) mailing DVDs there, but the DOJ's own rules state that defendants should preferably be tried in their city of origin—which in Goldman's case would have been Jersey City, but the federal court building is in nearby Newark, where his trial will take place.

So why was Extreme indicted in Pittsburgh, Max in Tampa, and Evil Angel in D.C.? Simple: Prosecutors thought they stood a greater chance of getting a conviction on the (unconstitutionally vague) obscenity charges in those cities rather than in Los Angeles, where the populace might easily been seen by Justice Department bigwigs as too liberal to convict. In fact, rumor has it that the feds originally wanted to indict Evil Angel in Alabama, but that the idea was nixed by a prosecutor who didn't want to have to spend time there for motions and trial.

The practice of seeking out conservative jurisdictions for obscenity prosecutions has been so widespread that First Amendment attorneys even have a name for it: forum shopping.

But depending on the outcome of a Supreme Court case which was argued on Wednesday, prosecutors may have to rethink their strategies for prosecuting producers of sexually explicit material.

The case is Pottawattamie County, Iowa, et al. v. McGhee, et al., and it involves two African American men, Curtis McGhee Jr. and Terry Harrington, who were convicted in 1977 of the murder of a (white) retired police officer at an Iowa car dealership where the victim was working as a security guard. The defendants spent 25 years in prison, but because of information which only recently came to light, they filed suit against the county and its prosecutors' office under 42 U.S.C. §1983, alleging that prosecutors and police officials had deprived them of their constitutional rights.

Records show that as the investigation of the case progressed, prosecutor Dave Richter and his assistant Joseph Hrvol became intimately involved in the process, particularly in interviewing possible witnesses to the crime.

But as McGhee and Harrington charge in their suit, Richter and Hrvol failed to turn over evidence to trial counsel in the case which showed that the county's initial suspect, Charles Gates, brother-in-law of the local Fire Department captain, had been seen by other witnesses at the scene of the crime holding a shotgun, and that he had later failed a polygraph test, indicating that he had intimate knowledge of the circumstances of the murder.

Instead, Richter and Hrvol presented 16-year-old car thief Kevin Hughes as their star witness... after the police had promised to help make some of Hughes' other criminal charges disappear, and may even have offered him a $5,000 reward for his testimony against McGhee and Harrington.

There was just one problem: Hughes never told the same story of the events twice. He named a wide variety of alleged perpetrators, all of whom turned out to have rock-solid alibis, and changed his mind several times about what murder weapon was used, all allegedly at the instigation of Richter and Hrvol, who apparently finally fed him enough "correct" information which Hughes could regurgitate on the witness stand. It was Hughes' testimony that primarily led to McGhee and Harrington spending a quarter century behind bars. (Well, the all-white jury may have contributed to that as well.)

So upon their release, the defendants sued Richter, Hrvol and the county they worked for, for having failed to tell the defense that they had another more likely culprit (Gates)... but there's just one problem: Under several Supreme Court precedents, including Buckley v. Fitzsimmons and Imbler v. Pachtman, prosecutors are granted absolute immunity for their conduct during a trial.

However, such immunity is only "qualified" if the prosecutor is intimately involved in the investigation itself—or in the words of the Buckley opinion, the prosecutor "functions as an administrator rather than as an officer of the court ... There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is 'neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.'" [Citation removed]

Trouble is, if the prosecutor uses, for instance, fabricated evidence (like Hughes' testimony) at trial, the absolute immunity doctrine kicks in, and discussion of that seeming disparity is what formed the bulk of yesterday's Supreme Court argument.

Indeed, Stephen Sanders, representing Pottawattamie County, admitted that if police officers or prosecutors not directly involved in the trial knowingly passed along fabricated evidence, they would be liable under §1983, which led Justice Anthony Kennedy to ask, "So the law is, the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition."

Justice Ruth Bader Ginsburg followed up on that point, commenting, "It's strange to say a prosecutor who wasn't involved in the trial would have liability, but as long as the prosecutor turns the investigatory material over to himself, there's absolute immunity."

But perhaps the blockbuster argument was made by Deputy Solicitor General Neal Katyal, whose office intervened in support of the prosecutors, when he claimed that McGhee and Harrington were essentially arguing that the high court should "announce for first time ever that there is a free-standing due process right not to be framed." (Um ... duh? Most people probably thought that was the law already!)

Replied Justice Stephen Breyer, "[T]here is no free-standing right. There is just a right not to convict a person with made-up evidence."

As questioning proceeded, it became clear that the Court was once again split down liberal/conservative lines, with Justices Breyer, Ginsburg, John Paul Stevens and Sonia Sotomayor appearing to be willing to scale back prosecutorial immunity; Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia and Clarence Thomas fretting that limiting immunity would result in a deluge of §1983 claims by defendants; and Kennedy in the middle, though leaning liberal this time.

But the question this controversy should raise for the adult industry is, could it be considered "bad faith" or even misconduct for the FBI, which may or may not be acting on orders (or suggestions) from the Justice Department's Obscenity Prosecution Task Force, to seek out jurisdictions within which to prosecute adult material as obscene, absent any legitimate local complaints about the material (mass complainers like Morality In Media's website not included)? After all, the DOJ's own U.S. Attorneys Manual requires that where a "case is to be based solely upon test purchases by postal inspectors, it may be venued in the district of receipt where the government has some information showing that there were prior mailings into the recipient districts by the individual involved." [Emphasis added]

Now, although it's likely that Evil Angel had sent material into the D.C. area before its indictment last year, the only prior connections of Extreme with Pittsburgh or Max Hardcore with Tampa before government agents ordered DVDs from them appear to have been the fact that their trailers were available via the internet in those jurisdictions. And with the Ninth Circuit's recent decision in U.S. v. Kilbride and Schaffer that internet postings should be judged by a national "community standard," the mere fact that sexually explicit trailers (or movies) can be accessed in a particular area of the country shouldn't form the basis of a "Miller test" claim that the producer had had prior "obscenity" contact with the jurisdiction.

So is it possible that at some future date, adult producers accused in far-away jurisdictions of sending obscene materials to those locations may have standing to get the charges dismissed for prosecutorial misconduct?

Of course, Pottawattamie v. McGhee won't address that issue, but the upcoming Barry Goldman trial may do so, since his attorney Lisa Mack raised that very issue in her pre-trial pleadings—and a ruling from the Supreme Court that prosecutorial misconduct is not absolutely protected may go a long way to establishing increased immunity for adult companies' sale of sexually explicit material.