PITTSBURGH - Attorneys for the federal government and Extreme Associates had what may be their final court hearing before Extreme and its owners, Rob Black and Lizzie Borden, go on trial March 16 on charges of interstate transportation of obscene material and posting such material on the company's website.
The hearing, which took place Monday morning, lasted about an hour and a half, though very little took place in the courtroom itself.
"We had just kind of an informal conference," said H. Louis Sirkin, lead counsel for the defendants. "The only thing we really did in the courtroom was a mild demonstration of a website that was shown to [Judge Gary Lancaster] to give him some understanding of what a website was."
Lancaster's January 2005 decision to dismiss all charges against Extreme was overturned by the Third Circuit Court of Appeals later that year.
"The government felt that there was some question in one of our telephone conferences of what was meant by a 'website' as opposed to a 'web page,' so we gave a real mild demonstration," Sirkin told AVN. "We just showed a real brief clip from one of the trailers available on the site, and how you get to it. The one thing that was interesting, he was concerned about where a person who goes onto a website is doing it from. He was trying to find out, 'How do you know that,' and it turns out, really and truthfully, they wouldn't know it. Rob wouldn't know it; it goes to the credit card company, which takes care of the billing. If I use a credit card, the billing goes to the credit card company; it never goes to him, and then they get their payment but they don't know where, geographically, it comes from. So we answered that question. That was about it."
Although little else was settled on Monday, the hearing did set the stage for several controversies to come.
"The court is taking under advisement what it means to be 'taken as a whole' regarding a website, and the other issue is what to do with the definition of 'community,'" Sirkin said. "We did explain to him that the two issues of 'as a whole' and 'community' were pending questions in Washington in the Stagliano case; that we'd argued that in front of Judge Leon and he took it under advisement. I wanted the judge to know that, and of course, also that that would be one of the appellate issues that we would be raising in the Max Hardcore case. The transcripts have been filed in Max Hardcore, and we have a tentative briefing schedule for our appeal in that case. My suggestion to him, as Paul [Cambria] had suggested to Judge Leon, was that perhaps the court should decide that the community should be much broader than just where the jury comes from, or an undisclosed [area], and making it either a national or cyberspace [community] and letting the government do an interlocutory appeal on that issue. There was no response, but I put that out on the table."
Judge Lancaster indicated that he might allow the defense to use the "Google Trends" search engine to show what people in the Pittsburgh, Pa. area have been searching for that may be similar to the material at issue. Attorney Jeffrey Douglas used a similar tactic in the Max Hardcore trial.
Sirkin pointed to other positive developments in Judge Lancaster's rulings.
"He's going to explain very early on [to the jury and spectators] that it's adult material and participated in by adults, and that there are no children involved; it has nothing to do with children," Sirkin told AVN. "He said the movies are going to play in their entirely; he's not going to hold anybody out of the courtroom; he's not going to make any announcement like 'if you're offended by this, don't stay in here'; none of that kind of stuff. He's not going to treat the subject matter any differently, and that's great, because then we won't run into that problem that happened in Tampa, which I think hurt us. So he seemed very good about that."
"He indicated he was going to send out a jury questionnaire," Sirkin added. "He's not going to use the one that we proposed completely, but he did agree that he would send out a questionnaire. We have not seen the contents of it, nor do we know what it is at the moment, but he did indicate that."
Such a questionnaire, depending on the questions asked, might indicate which potential jurors were familiar with adult material; which were opposed to or offended by sexual speech on personal or religious grounds; and whether any members of the jury pool were members or, or had contributed to, pro-censorship organizations like Cincinnati-based Citizens for Community Values or Morality In Media.
Prosecutor Mary Beth Buchanan might not wind up representing the government during the trial. The Pittsburgh-based U.S. Attorney has stated that she will not voluntarily resign her position, as U.S. attorneys commonly do before the new president is sworn in, it is questionable whether Barack Obama will want her as part of his administration.
Aside from having served as the Director of the Executive Office for United States Attorneys under Attorneys General John Ashcroft and Alberto Gonzales in 2004 and 2005, Buchanan instigated two obscenity cases - Extreme and Karen Fletcher - as well as the prosecution of actor/musician Tommy Chong for selling his signature glass bongs through the mail.
Reason magazine writer Radley Balko also notes that Buchanan's prosecution of elderly physician Dr. Bernard Rottschaefer for allegedly having traded prescriptions for OxyContin for sex - allegations which all the witnesses against Rottschaefer have now recanted - may add to the backlash against her continuing as U.S. Attorney.
Government attorneys who are expected to continue with the case include Steve Coffman, whom Sirkin described as "very, very pleasant," and Damon King, an attorney with the Obscenity Prosecution Task Force.