Four Videos Gone From Staunton Trial as Defense Files Motions

STAUNTON, Va. — Although the Charlottesville Hook reported Thursday that the indictments against Rick Krial, owner of After Hours Video, and cashier Tinsley Embrey, could result in multiple trials for the defendants, attorney Paul Cambria, representing Krial and his store, denies that that will happen, for one simple reason: It's unconstitutional.

"There originally were four indictments, with a total of 12 movies," Cambria explained. "He [Staunton Commonwealth's Attorney Ray Robertson] wanted to join both defendants together in one trial. We didn't have a problem with that. But he wanted to have four trials, and I and Lou [Sirkin, who represents Embrey] wanted to have one trial with all the movies, and the judge goes, 'Well, that's a lot of movies; I don't know if we can do it.' So I said, 'Well, make him elect; make him pick representative movies' and so on. So he says, 'Well, how about this: We'll only show them two of the movies and then tell them they can rule the same way on the rest as they rule on those two.' We said, 'Well, of course, we can't do that because you have to take each movie as a whole, and we're not about to engage in some kind of prior restraint and censorship; it's not gonna happen.'"

In fact, the attempt by the court to allow the jury to look at only some of the evidence would result in a violation of the Miller obscenity standard, which requires that each charged work be considered "as a whole." The government tried a similar tactic in the Five Star Video trial, but when the defense there insisted that all charged videos be played in their entirety, including the "extra" features on the DVD, it resulted in the prosecution dismissing, or "nolle prossing," one entire video from the case.

In the After Hours case, however, using only parts of the charged videos is a problem that, according to Cambria, extends back even to the indictment stage of the proceedings.

"I moved to dismiss the indictment on the grounds that the grand jury was not shown the movie as a whole but only excerpts," Cambria noted, "and I got that from a newspaper article which attached to my motion, where he [Robertson] said, 'We showed the grand jury parts of the movies.'"

While it's unclear whether the Miller "taken as a whole" standard applies to grand juries, since they are not the ultimate triers of the fact — the trial jury serves that function — it's certainly logical that if the grand jury had indeed seen the entire movies on which the prosecution was seeking indictments, they might have found that, taken as a whole, the movies did not offend the community standard, or had redeeming value that would have precluded their prosecution.

"The judge said he thinks that several trials would have a due process implication, which is what my argument was," Cambria continued, "and so the prosecutor said, 'Well, I have a feeling that whichever way it goes on the first trial is probably going to have a lot to do with what happens.' He says, 'Here's what I'll do: I'll cut out two of the movies [of the four charged] in the first indictment, and I will cut out two of the movies in the second indictment,' which also had four, and he said, 'We'll try the first one and we'll see what happens, and probably, I'm not gonna try any more after the first or second.' And the judge said, 'Well, then, Mr. Cambria made the argument about due process, and I think there would be due process ramifications if you tried to go further.' And of course, our position was, we plan to win the first one. So in the end, he dismissed half of the charges in the first two indictments and we're going to try the first indictment first, and then see what happens."

The two features to be tried first will be Extreme Gangbang and Sugar Bitches, and while it's still unclear whether there will be a second trial stemming from the same set of indictments, the problem that a second trial would create goes all the way back to the late '80s, and Project Postporn.

Project Postporn was an attempt by the Reagan administration's National Obscenity Enforcement Unit to drive adult mail-order companies out of business by having them indicted in multiple jurisdictions at the same time, and forcing them to bear the costs of defense — possibly millions of dollars — in each of those cases, as set forth in Adam & Eve owner Phil Harvey's memoir, "The Government vs. Erotica." However, in 1993, as a result of a lawsuit Adam & Eve brought against the U.S. Department of Justice, U.S. District Court Judge Joyce Hens Green ordered that the government be "preliminarily restrained and enjoined from causing or permitting indictments to be returned against plaintiffs, or either of them, in more than one federal judicial district within the United States, pending determination of this case [a North Carolina indictment] on the merits or further order of this Court."

In a sense, the prosecution in this state court action is attempting something comparable to what the Justice Department did federally in the Adam & Eve case: Force the defendants to defend essentially the same actions — the single sale of adult videos to undercover police officers — in two (or possibly more) different trials stemming out of the same set of indictments. Robertson's alleged reason for doing so is based on the state's obscenity law, which allows a defendant to be charged with a felony if he/she sells obscene material after having been convicted of a first offense of misdemeanor sale of obscene material.

"The trial on the second indictment, he claims, would be at the felony level if he got a conviction on the first indictment," Cambria explained, "and I said, 'We have a real problem with that.' I said, 'Judge, you can't put us through four trials, the expense and so on.' I said, 'He could have purchased 50 movies and then put us through 10 trials,' and the judge said, 'Well, if he tried to do that, I think there would in fact be due process problems,' and it was obvious that that was in the air and then shortly thereafter is when he agreed that he would knock out two of the movies in each of the first two [indictments], and probably not try to go any further than the first one or two indictments."

The problem is, however, that current Virginia legal precedent gives Robertson the power to seek felony convictions in a second trial.

"The statute holds that way, and Lou had a case specifically like that in Virginia and lost it, and the appellate court ruled that they could do that," Cambria continued. "The sales all occurred before there was a conviction, so it wasn't a situation where you got convicted and then you sold anyway, and so I said, 'We've got a real problem with that. There's no Supreme Court of Virginia decision on that. I'm filing a motion today,' which I did file today, 'challenging that enhancement statute. Our position is two-fold: Number one, you won't get a conviction on the first one, and number two, if you do, it would be unconstitutional to try to make it a felony because the act did not occur and the presumption was not removed before the second sale occurred.'"

Robertson had also argued that another reason for multiple trials was to break up the amount of video a single jury would have to watch if there were only one trial.

"You're dealing with 24 hours' worth of porn," Robertson told the Hook. "I've watched these, and if you require a jury to watch all that, they could become bored or desensitized to these acts."

It was a tactic that Cambria vehemently opposed.

"I argued to the Court, 'That is a totally illegitimate argument because it is a strategic benefit as opposed to a legal requirement.' I said, 'For him to say that he's afraid of desensitization means that he doesn't want to lose some kind of edge that he thinks he has, and therefore it's a tactical move as opposed to a lawful move,' and it was after I made that argument and I said there was a due process problem and all that, that he then said, 'Oh, well, we'll knock off these two and knock off those two and only probably try two at the most,' and that's how we got to where we are now."

"I also filed several motions today challenging the obscenity statute," Cambria said. "One because it includes mere nudity and therefore is overbroad, and I also challenged the enhancement statute on the grounds that it violates the First Amendment and due process because the materials are presumptively protected, so how can you be punished before the presumption is removed, for an act that occurs before the presumption is removed? Louie also made the Lawrence motion [based on the Fourteenth Amendment's substantive due process rights], which I adopted, and then he adopted all of mine, so that's where we are."

The defense's pretrial motions will be argued on May 28, with the trial itself scheduled to begin on June 17.