Faulty Disk May Cost Gov't 2 Counts in Stagliano Trial-UPDATE

WASHINGTON, D.C.—The late comedian Lenny Bruce used to tell a story about when he was busted in Chicago for allegedly putting on an obscene performance, and that during the trial, the judge allowed a police officer to read into the record his description of Bruce's stage act—and in Bruce's opinion, reading it very badly.

"Please, Your Honor," Bruce pleaded with the court (and we're paraphrasing here), "let me go on the witness stand and do my own routine myself. This guy doesn't know my routine, and I don't want to be convicted because some cop can't perform my act as well as I can."

Now, over 50 years later, defendant John Stagliano may find himself convicted for the same reason Lenny Bruce was—but more on that later.

The second day of the Stagliano obscenity trial got off to a rollicking start when defense attorney Allan Gelbard asked permission from Judge Richard J. Leon to allow a defense witness, actress Lorelei Lee, to testify under her stage name rather than to force the performer to reveal her given name—a practice which has been allowed in federal courts for various reasons for many years.

A simple request, it seemed—but prosecutor Pamela Stever Satterfield would have none of it.

"We think it gives some air of legitimacy to a porn star," Satterfield objected, declaring that the jury had a right to hear the actress's real name.

Gelbard told the court that the reason for the request was that it was not uncommon for actresses whose real names had been revealed to find themselves the targets of stalkers, who have done everything from showing up at the performers' hotel rooms when they're on the road dancing to showing up at the women's houses after ascertaining their addresses from the internet. Gelbard said he had had one client who had exactly that experience.

"The jury will see her and get to know everything about her life except her real name," Gelbard countered.

Terming it a "very unusual request," Judge Leon said that he would take the motion under advisement.

Just to be sure, however, Lee obtained her own counsel, local attorney Carmen Hernandez, who filed a protective order this afternoon, citing the case of U.S. v. Celis that, "Where a District Court is satisfied that there is an actual threat to a witness if his or her identity is disclosed, the Court may permit a witness to testify using a pseudonym, so long as there is enough information provided to allow for effective cross examination of the witness."

It is likely, however, that Judge Leon will not deliver his decision until shortly before Lee is to take the witness stand.

Lee was one of the two women who appeared in the scene from Jay Sin's Milk Nymphos that was played for the jury on Tuesday, and as FBI Special Agent Daniel Bradley re-took the witness stand this morning, Satterfield asked him to describe the other three scenes on the disk. Bradley stated generally that scenes involved women and men engaging in sexual acts, and that in one instance, one of the women used a plastic syringe to insert milk into another performer's ass, which was then "excreted"; that in another scene, a woman used an "enema-shaped object" to inject the milk, which also was "excreted," while in the final scene, two women looking for "milkshakes" wind up in an apartment where milk is siphoned into a woman's ass through a tube and ... you guessed it.

Lenny Bruce must have been rolling over in his grave.

Satterfield then had Bradley describe the front and back covers of Joey Silvera's Storm Squirters 2: Target Practice, as well as a package insert consisting of a single page titled "Evil Empire News," which contained black-and-white reproductions of boxcovers of other Evil Angel movies and some text about each—an insert that came under much discussion later.

But first, the fourth scene from Storm Squirters 2 was played for the jury—and again, only the judge, the attorneys, the jury and two selected members of the press were allowed to hear the soundtrack.

The scene featured famed squirter Angela Stone humorously ordering actress Richelle Ryan to kneel on the floor in front of her so Stone could try some "target practice" by squirting directly into Ryan's mouth—but sadly, the audience in the courtroom missed the comedy of Stone asking Ryan first to move a little closer to her, then a little farther back, then closer, farther ... and finally, after about five minutes of this, Stone let loose a stream into Ryan's mouth, with the brunette actress faking gargling the liquid. Jay Lassiter then entered the room and the trio proceeded to perform various sex acts including both cowgirl positions, doggie and mish, with plenty of squirting moistening the entire endeavor.

Again, Satterfield asked Bradley to describe the remaining scenes on the disk, which Bradley dutifully did—in fact, had to, since Judge Leon had ruled out either side playing the entire movie for the jury—and once again, the scenes consisted of various sex acts, of which squirting was a significant part.

Bradley then was asked to describe how he had accessed the trailer to Belladonna's Fetish Fanatic 5 from the Evil Angel website and how, using a computer program called "Camtasia," he had copied the process, starting with opening Evil Angel's home page right up to playing the trailer, onto a CD-R compact disk, which Satterfield had labeled Exhibit 9. She also produced a 14-page packet of screen shots of Bradley's process leading up to the playing of the trailer, which she marked as Exhibit 10, which she said would help the jury follow Bradley's actions—"Ten is just nine in paper form," she claimed—and that's when the fireworks began.

Stagliano's attorney, Paul Cambria, speaking for the defense team, objected to Exhibit 10 because some of the screen shots depicted other movies that could be purchased on Evil Angel's website, and he feared that the jury might be confused into thinking that those other movies were part of the government's obscenity case, when in fact they had nothing to do with it. The exclusion of such irrelevant material, he said, was well established in obscenity jurisprudence, and he cited the famous case of Ft. Wayne Books v. Indiana.

Satterfield countered by alleging that the existence of the other movies helped fortify the government's case that the defendants had engaged in "pandering" the allegedly obscene movies and trailer, and cited the case of Splan (ph.) v. California to bolster her argument.

Cambria also took the opportunity to voice essentially the same objection to the package insert in Storm Squirters 2, arguing that it too contained movies boxcovers and text that was irrelevant to the case, and he asked Judge Leon to prohibit the jury from seeing the insert, and/or to instruct the jury that the movies and text depicted in each document formed no part of the government's obscenity case and that they should not form any part of the jury's deliberation.

A long discussion ensued, which ended with Satterfield withdrawing the package insert from consideration, and with the judge soliciting proposed instructions from both sides as to how to handle the boxcovers and text in the screen shots that were part of Exhibit 10. After the luncheon recess, the judge gave instructions to the jury that they were not to consider the boxcovers and screen shots to be part of the government's obscenity case.

But that was hardly the end of the fireworks display.

Early in the afternoon session, Satterfield attempted to play Exhibit 9, the CD with the recorded Fetish Fanatic 5 trailer—but after the eight-minute recording (five minutes of which was the trailer itself) was nearly finished playing, someone called the judge's attention to the fact that there had been no soundtrack audible while the trailer was being played.

The judge (who apparently was under the impression that the trailer had no soundtrack) castigated the prosecution team for the technical failure.

"You've had a year and a half to get ready for this case," he thundered at Satterfield. "This is not an acceptable way to do business."

Judge Leon then said that he would not allow Satterfield to replay the trailer, but would let her play the remaining one minute and 53 seconds with sound if she could get the CD to play properly—and promptly ordered a recess so that the government's technicians could figure out what was wrong with the disk.

Once court was back in session, Satterfield reported that Exhibit 9 was "corrupted," but said that she had a back-up copy that appeared to play properly.

This offer led to objections from the defense that it would be improper to play the copy since it had not been authenticated as an exact duplicate of the original exhibit—but when Judge Leon offered to take a recess so that the defense attorneys could compare the offered copy to the original exhibit, H. Louis Sirkin, representing John Stagliano, Inc., informed the court that the defense had never seen a copy of Exhibit 10 because the copies provided to him and the other defense attorneys were not playable on the attorneys' computers, and even though Gelbard (who styled himself as the most computer-knowledgeable member of the defense team) had informed Satterfield of the problem months ago, the prosecution had never taken any steps to either provide playable disks or computer programs that would play the disks as they had been supplied during the evidentiary discovery period.

"The point is, we never received the evidence," Gelbard summarized.

"Did you start this trial with the belief that it could never be played?" the somewhat astonished judge asked.

"Yes," Gelbard replied, with Cambria quickly voicing agreement.

Satterfield countered that she had supplied the disks nearly two years ago and later gave the defendants information which would allow them to play the disks, and argued that the defendants had never filed a motion complaining about the faulty evidence production.

Gelbard responded that he knew computers and knew that the disks were not playable, but, "It's not our job to tell the government their evidence is flawed."

Judge Leon noted that the issue of the disks not being playable was different from the issue of whether the original Exhibit 9 was identical to the copy Satterfield was offering to play for the jury, and ruled that it was the government's responsibility to prove that the copy being offered was identical to Exhibit 9 ... and also that the defense had the right to review the exhibit before it was played for the jury. He then ordered another recess, during which the government was to show that their copy was identical to the original—and that if they couldn't, he would remove the exhibit from the case, which would mean that Counts 3 and 7 of the indictment, both of which related exclusively to the trailer that was (allegedly) on Exhibit 9, would be removed from the case as well.

Gelbard, however, noted that if Exhibit 9 was indeed corrupted, it would be impossible to tell whether the copy was identical to the exhibit, but the judge said that he would nonetheless give the government the opportunity to "resurrect" its exhibit—or all mention of the trailer would be removed from the case.

"I share your frustration with this state of affairs," he told Gelbard.

Satterfield offered to speak to Agent Bradley to see if he could testify that the copy disk was identical to the exhibit, but Cambria objected to that since Bradley had testified during the grand jury proceedings that he had not made a summary of the content of the trailer as he had with the two charged DVDs, and that therefore, the agent would have nothing except possibly his memory to use to ascertain how true the copy disk was to the original exhibit.

Returning from yet another recess, Satterfield announced that the original Exhibit 9 was in fact playable, and that Agent Bradley was now able to testify that the copy was identical to the exhibit—at which point Gelbard jumped in and charged that Exhibit 9 "plays differently on every machine they try to play it on," noting particularly that in various places during playback, the audio of the disk continues to play while the video image freezes for more than 10 seconds at a time—a situation, he argued, that could mean that the trailer as copied to the disk by the Camtasia program had not faithfully replicated the trailer as seen on the website, and that therefore, since the jury might find the trailer playing differently in the jury room than they might see it playing in the courtroom, the disk could not be used as evidence because its contents did not fulfill the Supreme Court's "taken as a whole" standard.

"I don't know if there's any way to know if this [exhibit] is reliable," Gelbard stated, accusing the Camtastic program of causing the problem, analogizing it to sprockets missing on a bicycle chain.

Satterfield averred that Agent Bradley could testify whether the trailer on the disk was the same as what he downloaded, and suggested that the defense could cross-examine him on the various starts and stops of the disk's playback if they wanted. She also denied that the trailer stopped and started at different places each time it was played.

At that point, Judge Leon called Agent Bradley back to the witness stand (with the jury still out of the courtroom) and asked him if he had seen the playback of Exhibit 9 during the break. Bradley said that he had seen a copy played but not the original, so the judge ordered him to watch Exhibit 9 being played so that he could say whether the copy that had been made was identical to the original exhibit. Gelbard asked that all of the attorneys be allowed to watch the playback, and the judge agreed.

After yet another recess, Judge Leon returned to the bench and asked Agent Bradley whether he had seen the whole playback of Exhibit 9, and Bradley answered in the affirmative, but admitted that the audio portion of the playback "cuts out" during a particular scene for 10 to 12 seconds. He also said that in his opinion, the copy that had been offered was the same as the original exhibit, but admitted that he was not a forensic examiner so he could be sure they were precisely the same. The judge asked if the audio on the copy disk cut out at the same spot that it did on the original exhibit, and Bradley said it did.

On cross-examination, Cambria asked if Bradley had indeed made a written summary of the content of the trailer, and the witness said that he hadn't—and later admitted that the only way he had of telling whether the trailer he had seen played on the disk was the same as the trailer he had seen when he downloaded it 18 months previous was his own memory of it.

Gelbard then asked if the trailer which he watched and downloaded on January 21, 2008, had the same "glitches" as did the copy of the trailer he had watched on disk in the courtroom today, and Bradley admitted that he didn't know.

After Bradley was excused from the witness stand and left the courtroom, Gelbard argued that Exhibit 9 seemed to have different "time shifts" each time it was played back—and that the copy showed similar but not identical "time shifting" as well, leading him to argue that neither disk was reliable enough to be used as evidence by the jury since the playback errors violated the "taken as a whole" concept.

"'Taken as a whole' means something," he argued, adding that this was a First Amendment issue, and that since Agent Bradley couldn't say that the exhibit is what it purports to be—a true copy of the trailer as it appeared on the Evil Angel website—it was defective and should be stricken from the record.

More argument followed, and as court recessed for the day, Judge Leon said that he would take the defense objections to the exhibit under advisement and give a ruling on the issue when court reconvened Thursday morning at 10 a.m.


Late Wednesday evening, the government filed a Motion in Limine opposing the defense's oral motion the previous afternoon that the CD containing the trailer to Fetish Fanatic 5 be removed from the case since, the defense had argued, it was not an accurate replication of the trailer that had appeared on the Evil Angel website.

In her motion, Satterfield argued that although Agent Bradley had testified on the witness stand that it was "impossible" to recall every second of the trailer he had downloaded, "the fact that he recalled that it was the same or substantially same content is sufficient. In essence, he testified that the evidence is what it purports to be. There is no evidence that the exhibit is missing any content," she wrote.

As noted above, Gelbard and the other defense attorneys had watched the replay of Exhibit 9 during an afternoon recess, and even Agent Bradley had admitted that there were irregularities in the playback, notably a period of at least 10 seconds where the audio of the trailer continued to play while the video image froze on screen. Gelbard also commented that there appeared to be several momentary gaps while the trailer was playing, and that those gaps appeared to change location every time the disk was played.

"Defense counsel's assertion that frames are missing is pure speculation," Satterfield argued in the motion. "It is just as likely that when Agent Bradley was downloading the content from the website, that there were 'pauses' in the streaming video, as often occurs with streaming video and particularly with video obtained through a wireless Internet connection.

"Even if this Court finds, at worst, that a few seconds of the recording are missing, this fact is immaterial, as the content of the recording is consistently sexual in nature," she continued. "Sexual acts are repeated throughout the trailer and the only dialogue consists of moaning and expletives. Since the content before and after the purported 'pauses' is consistent, it would be hard to imagine that any alleged 'missing' content in those few seconds would negate the matter’s patent offensiveness or prurient appeal. It would further be hard to imagine that those alleged few 'missing' seconds contained any 'serious' literary, artistic, political, or scientific value. The acts and dialogue in this 4 minute, 46 second trailer are consistently sexual in nature, so any “missing” frames add nothing."

Of course, the problem for the government is, not all sexually explicit material is considered to be obscene under the law, and small differnces in the material may amount to big differences in the jurors' minds regarding the legality or illegality of the material.

Satterfield also argued that if defects in Exhibit 9 do exist, they would go to the weight the jury should place on the evidence, not its admissibility into evidence in the first place.

These and other weighty issues will be taken up when court resumes at 10 a.m. Thursday morning.