Publish or Perish: Catch-22 at the Stagliano Trial

WASHINGTON, D.C.—It's an incontrovertible fact that people who don't want to see sexually explicit material won't watch it, and the adult industry is quick to agree that no one should be forced to sit through its productions if they object to doing so, with one possible exception—and that exception may mean freedom or imprisonment for John Stagliano.

The issue is the "publication" (playing) to the jury of the two DVDs and one trailer charged as obscene by the Department of Justice (DOJ) in Stagliano's obscenity trial, scheduled to begin on July 7. Although the attorneys involved in the case won't talk about what went on during the pretrial conference before Judge Richard J. Leon on June 2, the fact that defense attorney Paul Cambria filed a motion to "publish the charged movies and movie trailer to the jury in their entirety as defense counsel deem appropriate during cross examination or on defendants' case-in-chief" pretty much says it all: Despite the requirement under Miller v. California that for a work to be found to be "obscene," it must be considered "as a whole," the government has refused to play the complete DVDs of Storm Squirters 2 and Milk Nymphos for the jury during its case-in-chief, and Judge Leon apparently won't require them to do so.

In fact, apparently the judge was even wavering on whether he would permit the defense to play the full movies for the jury, and it was that uncertainty that gave rise to Cambria's motion—a motion which, as of their filing of June 10, the Justice Department won't oppose.

Sadly, however, that doesn't end the problem—and it's a problem that author Joseph Heller would recognize immediately.

It all comes down to something Justice Department prosecutor Edward McAndrew said of the movies claimed to be obscene during the Max Hardcore trial in Tampa two years ago: "The issue is who the jury might blame for having to watch it."

McAndrews' statement was based on an accurate assessment of human nature: We tend to look away from things we'd rather not see, often after a brief glimpse to make sure it is something we'd rather not see. People may slow their cars when passing the scene of an auto accident, but they don't really want to see the gushing blood and mangled bodies that are often part of the wreckage.

Now, for most people, sexually explicit material isn't in the same category as dead human bodies, but the principle is the same: People who are ashamed of sex, whose upbringing or religious training causes them to think of depictions of sexually explicit conduct as "sinful," will not voluntarily watch that material.

Trouble is, if those people are chosen to sit on a jury whose job it will be to decide whether a particular DVD is obscene, they will be forced to watch that DVD in its entirety—or at least, according to the law, they should be forced to do so, and perhaps more importantly, they should acquit the defendant if they aren't forced to do so.

So the question is, who are they going to blame? And the correct answer is: "The prosecution." Why? Because if the prosecutors don't force the jury to watch the entire allegedly obscene movies, they have by definition failed to make their case!

Of course, the prosecutors aren't stupid; they know the probability is almost 100 percent that most if not all of the jurors won't want to watch what's likely to be three or more hours of uninterrupted sexual activity, no matter how attractive the performers may look nor how well they perform their sexual acrobatics. And so, like the prosecutors in the Max Hardcore case, they have tried to prevent the judge from requiring them to fulfill their obligations under Miller and play the full movies for the jury during the prosecution's case-in-chief. Why? Easy: They don't want to be "blamed."

Now, in a perfect world, that would pretty much be the end of the government's prosecution, because the "Miller test" doesn't allow the prosecutors to play just excerpts of the material; that would violate the Miller requirement that the material be considered "as a whole." So the government would theoretically have just two choices: Either play the entire DVD—the movie and all of its extras—or not play it at all. Or in other words, take the "blame" for making the jury sit through three-plus hours of sexually explicit conduct, interviews with porn stars, trailers for other movies, the "stills gallery" and anything else that might be included as an "extra" on the DVD, or not make them sit through any of it, thus leaving the jury completely ignorant of just what's supposed to be wrong with the charged DVDs—and rendering them unable to arrive at a verdict!

But the Hardcore prosecutors came up with a third "alternative": Play just the excerpts they wanted from the charged movies, then send the entire DVDs into the jury room at the conclusion of the case, with instructions that the jurors should watch the entire movies and extras before beginning their deliberations. And in the Hardcore case, that's exactly what Judge Susan C. Bucklew seemed prepared to do!

So try for a moment to imagine the scenario in the Stagliano jury room if that procedure were followed in his case. Here are 12 regular citizens, most if not all of whom have never seen an adult movie in their entire lives, who'll be sitting around a big table staring at two DVD packages, each festooned with explicit photos from the movies in question, and thinking to themselves (if not saying out loud), "Well, they've always told us that jury deliberations are a completely private matter, so who's going to know whether we do or don't play these entire DVDs before deciding on Stagliano's guilt or innocence? How about let's not watch them and say we did?!"

And of course, that's exactly what the prosecution will be counting on!

So what's a defense attorney to do? The answer is, they're caught in a "Catch-22" situation.

For those not familiar with Joseph Heller's classic novel, one of its many plotlines involves an Army Air corpsman named Yossarian stationed in a town on the Mediterranean Sea. He knows he'll be allowed to go home after flying a certain number of missions over enemy territory, but the trouble is, just as he approaches the magic number, his superiors keep raising it, requiring him to fly more and more missions. Of course, if he were crazy, he wouldn't have to fly any more missions... but there's a catch: Catch-22. What that means is that if Yossarian goes to the medical officer and complains that he's too crazy to fly the missions, that in itself is evidence that he's sane enough to fly the missions, because who else but a sane person would object to flying more missions?

Stagliano's attorneys are faced with that same predicament. If the judge allows the prosecution to play only excerpts from the DVDs in court, and merely allows the jury to take the disks into the jury room and (supposedly) play them in full there—which it's likely they won't do—then the defense can never know whether the jury has in fact judged Stagliano's guilt or innocence based on considering the DVDs "as a whole" or just the excerpts played in court by the prosecution. But if the defense simply rests its case after the prosecution has played its excerpts and, if Stagliano is found guilty, appeals that verdict on the basis that the jury never considered the DVDs "as a whole," the appeals court is likely to respond that a) the jury was instructed to play the full DVDs during its deliberations, and presumably did so, and b) the defense had the opportunity to play during its defense case whatever portions of the DVDs weren't played by the prosecution, so the Miller standard is fulfilled. And of course, if the defense does play the remainder of the DVDs, then guess who gets the blame for making the jury sit through all of it?

The answer, of course, is "Catch-22." And that should be illegal.