Isaacs Trial Postponed; 2257 Charges Unexpectedly Dropped

LOS ANGELES - The obscenity trial of Ira Isaacs, alleged proprietor of the Stolen Car Films and LA Media websites, on charges of "importation or transportation of obscene material," and "importation or transportation of obscene material for sale or distribution," has been pushed back to April 22. Trial was to have begun on Feb. 27.

"The reason we were postponed was because the Jury Commissioner couldn't certify that the potential jurors in the jury pool came from all over the Central District [of California]," explained Roger Jon Diamond, attorney for the defendant. "It's constitutionally required that jurors come from the entire district where the federal court sits, because in the Hamling case, the court ruled that the government does not have to put on expert witnesses because the jurors are presumed to know the community standard from which they've come. In our particular case, we were willing to stipulate that the jurors only need to come from Los Angeles; we're not insisting that they come in from San Luis Obispo and Santa Barbara and Ventura County, but the judge did not want to gamble, and feels he wants to do it by the book."

That judge is U.S. District Court Judge George King, who as a federal prosecutor in the late '60s won a conviction against adult producer William Pincus, only to have Pincus' conviction overturned by the U.S. Supreme Court.

What Isaacs won't be going to trial on are Counts 7 and 8 of the indictment, "improper recordkeeping for material depicting sexual activity" - what adult industry personnel would call a 2257 violation.

"We did file a motion to dismiss counts 7 and 8, based on the Sixth Circuit ruling in the Connection case," Diamond said.

But the judge never got a chance to rule on that motion; the Department of Justice (DOJ), in the person of federal prosecutor Kenneth Whitted, summarily dropped the 2257 charges without explanation. Diamond isn't sure on what basis that decision was made, but Chicago-based First Amendment attorney Reed Lee had some thoughts on the matter.

"I think it's a clear indication that they don't want to bring a 2257 case in the Ninth Circuit, and that's where we're working to bring it," Lee opined.

Certainly, the Sixth Circuit's Connection decision is a likely candidate for the cause of the dismissal of the 2257 counts, but another possibility is the fact that, in drafting its 2257 regulations, the government failed to conduct required studies under the Regulatory Flexibility Act (RFA, or RegFlex) to determine the financial impact of the 2257 regulations on the industry; a fact that was brought to the Justice Department's attention last summer as the department was attempting to finalize the most recent revisions to the regulations.

"I gotta say, I think it's more likely that the Sixth Circuit panel, which got to the constitutional issues that Free Speech Coalition's been pressing, had an effect," Lee commented. "It may be that they are worried about the RFA issues; they should be; I just don't know. But my guess is that these constitutional issues overwhelm the regulatory concerns at the moment because they're so fundamental. If the Sixth Circuit panel and Free Speech Coalition are right about the constitutional issues, the RegFlex becomes tertiary; it pales in comparison, because if the Sixth Circuit decision holds, there's no statute to write regs for.

"But whatever the particulars are, it does seem that they're not interested in litigating the validity of Section 2257 right now," Lee concluded. "I think that is an interesting signal. I'm not surprised, now that I think about it, for both the reasons we've discussed."

But beyond the 2257 situation, the Isaacs case has already brought up some fascinating legal issues, including a pre-trial one that may affect the final outcome of the case if Isaacs is found guilty.

"We had a meeting with acting U.S. Attorney Tom O'Brien in his office to try to resolve and settle the case, and they offered him what he was willing to take originally," Diamond recounted. "They offered him five months of home confinement and five months of regular custody, and he's turned that down. We had a very interesting dialog with the judge on the plea bargain, because Isaacs raised the point that he could not accept the offer of the government, because to do that, he'd have to admit that the material is obscene, and he doesn't personally believe it's obscene.

"So that raises the question, how can you in any case plead guilty in an obscenity case?" Diamond continued. "Because most federal judges, including this one, would want the defendant to say, 'I did all these things and therefore I'm guilty.' Isaacs points out that he can't plead guilty; he can't take the government's offer even if he wanted to, because nobody knows if something is obscene until a jury says it is. So how do you do that? We had a whole big discussion about that in court.

"One of the reasons I did that is, if he goes to trial and gets convicted, under the sentencing guidelines, you're supposed to be rewarded for accepting responsibility, etc., and I want the judge to know that Isaacs was willing to accept responsibility to the extent that he admits it was his movies: He made some of them, he shot them, he did all these things; he's not avoiding anything. But how can he admit the ultimate fact of obscenity because he doesn't believe it, and then he'd be lying to the court, so he shouldn't be punished - one of the reasons we did that is, if in fact he should get convicted, he would not want to lose the benefit of accepting responsibility as an element under the sentencing guidelines and maybe get probation anyway."

But that was only one of the quirky turns this case has already made.

"We also filed motions to dismiss the obscenity counts, and the judge found one of my arguments very intriguing, although he ultimately rejected it," Diamond revealed. "I argued - and nobody's ever argued this point before - that the obscenity statute violates the separation of powers doctrine of the U.S. Constitution, which separates legislative, executive and judicial functions into three separate branches of government. I said the violation occurs because, in effect, the executive branch has been given the authority to determine community standard and has not allowed the community standard to evolve, because by definition, if you exceed the community standard, you're basically breaking the law, assuming the other prongs are met in the obscenity test, so how does somebody expand or enlarge on the community standard to make it more flexible if the government has the power to prosecute anybody who exceeds the standard? There's almost a built-in dilemma there. The judge was kind of intrigued with that, but he eventually rejected the argument."

It's a powerful point. Everyone knows that the level of sexual explicitness that society has accepted in its media has varied wildly over the past century, from the days when a bared ankle was enough to excite Victorian youth, through early Hollywood films that showed the outline of bare bosoms under silky blouses before the Hayes Code put a stop to it, through the mildly graphic literary works of Henry Miller and John Cleland, to the near universal depiction of anal sex that, 30 years ago, was virtually unknown in mainstream adult features. So attitudes regarding sexual depictions have evolved, but by the government attempting to use current morés to convict producers who may simply be on the cutting edge of that evolution - think of Seymore Butts' December 2000 bust for depicting enthusiastic consensual fisting in Tampa Tushy Fest - it's attempting to do to the adult industry the same sort of thing it's doing to genetic researchers by limiting their access to embryonic stem cells. The DOJ, part of the (non-legislating) executive branch, is dictating to the judicial branch, "This is where the evolution of sexual media stops." But that stopping point is in reality a constantly moving target.

But having lost that argument (though it could still be brought up on appeal), Diamond says his client wants to concede the community standards issue and focus instead on the LAPS prong of the Miller obscenity test: Whether the material has literary, artistic, political or scientific (usually abbreviated "LAPS") value.

"We've got a psychiatrist, a local guy who's an expert in sex, who's going to testify that the material has serious scientific value," Diamond said, "and also, my client also wants to testify as an expert. I've never had a defendant testify as an expert, but he wants to testify; he wants to tell the jury why this is 'shock art' and why this is serious art. He wants to be an art expert to testify as to the artistic value of movies that graphically and unrelentingly depict people defecating on each other and masturbating horses and having the horse ejaculate into the mouth of a fellatio person."

The LAPS prong of the Miller test is the one portion that doesn't depend on community standards. Even if the jury were to find that the material, taken as a whole, "appeals to the prurient interest" - usually defined as a "shameful or morbid interest" in a particular sex act - and even if the work "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law," the material is still protected if it can be shown to have one of the four listed types of social value. According to a Los Angeles Times article, Isaacs has noted that "late Italian artist Piero Manzoni defecated in tins," and that "one of the tins sold for $70,000."

The government's response to the defendant's proffer of experts was to move for a "Daubert hearing," so named after the 1993 Supreme Court case, Daubert v. Merrell-Dow Pharmaceuticals. Daubert requires the trial judge to determine whether a proposed expert possesses "scientifically valid" knowledge that "will assist the trier of fact to understand or determine a fact in issue."

"The government wants to be able to question Dr. Nair as to his qualifications to give his opinion, and they also want to question Isaacs," Diamond said. "We tried to get comparable stuff in, but the judge ruled that there was no foundation for what we wanted to do. One of my proposals was to have Isaacs in front of the jury demonstrate with a computer, live, in real-time, just go into various scat websites, showing the jury what's actually out there, but the judge took a very formalistic view and said no, we can't just do it live in front of the jury spontaneously; we have to have everything set in advance, but that would have been interesting."

The Daubert hearing is scheduled for April 9, and the trial roughly two weeks after that, and Diamond estimates that it shouldn't take more than a week for both sides to complete their cases. Of course, that will include playing for the jury, in their entirety, the charged videos, which include Gang Bang Horse 'Pony Sex Game', Mako's First Time Scat, Hollywood Scat Amateurs No. 7 and BAE 20. Certainly, prosecutor Ken Whitted will have to worry whether, after seeing one or two of the features, the jury here, as did the one in the Five Star trial in Phoenix, will ask if there's some way they can avoid seeing the remainder of the charged films - in which case Whitted, as he did in Phoenix, will have to decide if he wants to drop charges against any of the movies to stem the possibility of a de facto jury nullification.