TAMPA - The call to Jennifer Kinsley's cellphone came at 3:45 on Thursday afternoon.
"They want us in the courtroom," she said to her fellow attorneys H. Louis Sirkin, Jeffrey Douglas, Jamie Benjamin and Dan Aaronson.
"Do they have a verdict?" Sirkin asked.
"No, I think it's for a question," Kinsley replied.
However, that turned out to be not quite correct. When the jury reentered the courtroom at 4:15, the "question" they had presented to Judge Susan C. Bucklew was, "Say if we make a decision on 10 of the 20 counts but are unable to reach a decision on the other 10, will the 10 counts we decide on stand?"
At that point, the jury had been deliberating for more than 12 hours, and all of the defense attorneys had suspected that that meant that either the jury had deadlocked, or that Paul Little aka Max Hardcore and his company, Max World Entertainment (MWE), had been acquitted on at least some of the obscenity charges they were facing.
However, Judge Bucklew had already answered "Yes" to that jury question (although she had not bothered to call the attorneys for either side into the courtroom when she had done so - a clear error), and now the jury had another one.
"There are people on both sides of the issue, and we are fairly certain we cannot reach a decision on the other 10," the foreman's note read. "How long must we deliberate?"
Judge Bucklew was prepared for such an eventuality, since it was hardly the first time such a thing had occurred in a federal trial. She delivered what is known as a "modified Allen charge" - basically, a request that the jury return to the jury room and attempt once more to work out its differences, reminding them that many people had invested much time, money and emotion in the trial, and asking those who had taken the minority stand on the issue(s) to reconsider the arguments of the majority ... although they were not supposed to give up strongly-held beliefs in the process.
After the jury was excused, the judge suggested to the attorneys for both sides that they not leave the courtroom, since there was some likelihood that the jury would return soon, either with verdicts on all counts, or to announce that they were hopelessly hung.
Roughly two more hours passed, though, with everyone growing more nervous as the minutes progressed. What was taking them so long?
Finally, at 6:15, the judge announced that the jury had reached verdicts on all counts. However, as they filed into the courtroom, eyes downcast, one woman obviously in tears, the foreman handed the verdict forms to the judge, who looked them over briefly, then handed them to her clerk to be read.
"On Count 1," said court clerk Layda Santiago, "Guilty. Count 2, Guilty. Count 3, Guilty."
And so it went through all 20 counts against both Little and MWE for using a computer system to transport obscene material and for mailing obscene material to the Middle District of Florida: Guilty on all counts.
At that point, about a dozen legal interns who had been observing the proceedings filed out, leaving the few Little supporters awash in sadness and exhaustion - but the pain wasn't over.
The judge informed the jury that since they had found the defendants guilty on some or all of the charges, it was now their duty to decide how much of Little's property - his home and his domain names - which he had supposedly used in the commission of his crimes, should be forfeited to the government.
Prosecutor Lisamarie Freitas spoke briefly about how Little had shot much of the five adjudged-obscene titles in his home, and how his Websites had been used to disseminate the promotional trailers that had also been found to be unprotected speech. But what apparently moved the jury even more was Jamie Benjamin's impassioned plea, "Please don't take Mr. Little's home. We're not talking about any residence here; we're talking about his house. It's all he has left now."
As the defense later learned, as the jury walked into the jury room to consider the forfeiture, one of them declared to the rest, "Okay; we gave you the guilty verdicts, but I'll be damned if I'm going to let you take his house!"
It still took them more than half an hour to reach their decision.
While the jury was deliberating the forfeiture, Judge Bucklew finally ruled on the remaining "Rule 29" motion to dismiss, which had asked the court to declare that the jury had been given insufficient evidence to find the defendants guilty of having mailed the five DVDs - "Euro" versions of Max Extreme 20, Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 - to the Tampa area. James Komurek, president and owner of JKG, Inc. and Jaded Video, an online retailer, had testified under grant of immunity that his company had done the mailing, and that neither Little nor MWE had had anything to do with choosing either the destination or the method of delivery. Judge Bucklew, however, had found that the mere fact that MWE sold the charged videos to Jaded, which then resold them to postal inspector Linda Walker, was enough to make out a case for "aiding and abetting" the sale, despite a recent 5th Circuit decision in U.S. v. McDowell that had found that a defendant in a similar situation was not guilty of the same crime.
But that was a 5th Circuit decision, Judge Bucklew said, and under case law in the 11th Circuit, where the trial was taking place, the defendants were guilty because they could have "reasonably foreseen" that Jaded would use the U.S. mails to send the DVDs to Tampa. Motion denied.
Almost as soon as the judge had completed her ruling, the jury signaled that it was ready to give its verdict on the forfeiture, and when the clerk read from the verdict form that Little's house would not be forfeited, although the domain names would, Little breathed a visible sigh of relief.
"That was what was most important to me, that I get to keep my house," he said later. "I can replace the domain names, maybe make it maxhardcorexxx.com, but as long as I still have my house, I figure I'm ahead of the game."
Although the attorneys had been warned not to approach the jurors after court had been dismissed to ask questions, one of the jurors - the woman who had been crying - approached this reporter to ask if she could speak to Paul Little to express her condolences on the verdict and to give him a hug. Little and his attorneys were engaging in a post-trial analysis at a nearby hotel, and the female juror, a male juror and the jury foreman all went to that location and engaged in a conversation with the defense team.
"I'm just so sorry this happened to you," the woman said, and did in fact hug Little, whose courtroom demeanor had been above reproach. "We tried and we tried and we tried, but we just couldn't get through to those others. They just beat on us and beat on us and beat on us until we gave in."
The jurors indicated that while the five movies, which contained scenes of urination, fisting and vomiting, were not to their taste, they didn't see anything wrong with others watching them if they wanted to, with the foreman commenting, "After all, that's why we have the First Amendment."
"I'm sorry those jurors didn't have the guts to stick to their beliefs," Sirkin said later. "It's a sad day in this country when even if you believe a person didn't commit a crime, that you can be badgered into changing your vote just because some other juror tries to bully you. That's not the way Americans are supposed to react."
One of the jurors said that as soon as the jury had entered the deliberation room, nine of them had been ready to find guilt on all charges before any discussion had even taken place.
"It was a travesty but we had no choice because of the way the law is written," the foreman declared. "If just two words in the law had been different, I think we could have held out longer for acquittal, and maybe even convinced the rest of them."
The two words: "Reasonably foreseeable," in the statute making it a crime to mail obscene matter, or aiding and abetting such mailing by another person. (See judge's comment above.)
"I should have got off for this nonsense," Little later said. "Obscenity is an archaic term; it's not defined well. I received no warning and they attempted to put me behind bars; they've got a conviction, but we intend to fight on. We're definitely going to appeal."
Dan Aaronson echoed that sentiment.
"That's why I like criminal cases," he said. "There, you're dealing with acts. The prosecution says the defendant did A, B and C, and you get to argue that he did or he didn't. But with obscenity cases, you have to argue the law rather than the acts, and sometimes, I don't think the jury can really understand that law, it's so vague."
"As I said in closing argument, I believe that this prosecution was shameful," Douglas told AVN. "And as Max Hardcore said, this is a sad day for America. It's a deeply sad day for him personally, but also for all of us."
All of the attorneys agreed, however, that the defense team had performed like a well-oiled machine; that they had worked out their strategies and delegated each point to the attorney who could best argue it; and that even their disagreements were settled amicably. Even the three jurors stated that they were more impressed by the defense's courtroom presentation than by the prosecution's.
But it wasn't enough.
"I'll be replaying this trial in my head for weeks to come," Benjamin said. "I'll wake up in the middle of the night and think to myself, 'Maybe I should have asked this question instead of that one,' or "Maybe I didn't make this or that point forcefully enough.'"
There was unanimous agreement among the attorneys that the case had presented several grounds upon which to appeal the verdicts, and Douglas said that he expected to have the notice of appeal ready to file just after Little is sentenced on September 5. Little faces a maximum of 50 years in prison and more than $5 million in fines.
