Sirkin Scores Obscenity Dismissal in Kentucky

PENDLETON, Ky. – Prominent First Amendment attorney H. Louis Sirkin scored another victory today when Judge Diana Wheeler delivered a directed verdict of "not guilty" regarding three counts of obscenity against Russell Van Wie, owner of the Love Stuff boutique here, due to insufficiency of the evidence against him.

"The government did not sustain its burden to show that Mr. Van Wie had knowledge of the content and character of the videos, thanks to brilliant lawyering by counsel, who knew when not to cross-examine a police officer, and knew once again how to tailor an opening argument," Sirkin recounted, apparently referring to both himself and co-counsel Mike Hatzell of Louisville. "In my opening argument, I avoided talking about what action or activity Mr. Van Wie did or didn't do, and just talked about the importance of the burden of proof being on the government."

Although Van Wie was involved in the operations of the store, located on I-71 about 40 miles north of Louisville, he had not been present on the premises on Sept. 8, 2005 when an undercover police officer purchased some of the videotapes which were eventually charged with obscenity.

The trial, which took place in Henry County District Court, lasted three days, during which time the jury saw all three of the charged videos: Wall-to-wall features Barely Legal 2 and Nasty Bottoms, and a compilation, Gay Pride 38. Van Wie faced up to one year in county jail, as well as a $500 fine for each count.

"The movies were over eight hours total, including some advertisements," Sirkin recalled. "The funny thing is, in one of the scenes in Nasty Bottoms, the girl is grunting and moaning so loud and much that one of the jurors burst out laughing."

The trial was the result of the consolidation of two cases, one from May of 2004 and the other of September, 2005. Between those dates, Love Stuff had changed from an all-adult store to a "percentage store" due to zoning problems. It was also the third attempt by prosecutors to bring Van Wie and his store into court, as two earlier attempts had ended in mistrials.

"The case has been going on for a couple of years," Sirkin explained. "This is the one where the one tape was taped over with a Lowe's Home Improvement commercial and we got a mistrial, and then during the second trial, we found that there was a scene in the movie that was purchased that had not been given to us in the duplicate that was made for us in discovery, and we got a second mistrial."

In preparation for the second trial, the police apparently had dubbed Nasty Bottoms, a 135 minute feature, at the two-hour speed, thereby losing the final scene and a few minutes of the penultimate scene – and in this instance, that made a major difference.

"So we're sitting in court, watching this movie and all of a sudden I'm seeing a scene that I'd never seen before, and I objected," Sirkin said. "And we took out my copy, and lo and behold, I was right. And the judge was very disturbed by that and what happened was, the scene that we didn't get a copy of had a black male and a white guy with a white woman, and it was double penetration. Now, I'm very inclusive when I describe the material to the jury in voir dire [pre-selection questioning of the jury panel] of what they're going to see, and I did not at all mention the interracial black man with a white woman and the double penetration because I didn't see it, and the judge, from having seen me in two prior voir dires, knew right away what the problem was, and this being rural Kentucky, that becomes a significant issue, the interracial, so she immediately granted the mistrial."

Sirkin had only compliments for Judge Wheeler.

"We had made a Lawrence-type motion to dismiss way back at the beginning of the case," Sirkin detailed. "She denied it, but she wrote a really decent opinion. She said, 'Look, the Kentucky Supreme Court has held our law to be constitutional; I don't feel, as a lower court, I have the power to do that,' but she analyzed it, and the other thing she did too is, there had been a mass seizure at this store, and she granted a motion to suppress, even though this was a seizure that was the result of a search warrant that she had signed. She was willing to listen to that. She was one of the best all-around trial judges I've been in front of in a very, very long time. She handles about four counties, and she's just – I think this judge is appellate court caliber. It takes a lot of guts to rule for a dismissal in a situation like this."

Judge Wheeler was under additional pressure because anti-adult activists from several surrounding counties were present in the courtroom during the proceedings, and had spent the summer marching on picket lines outside the store. One activist had even taken photos of customers and posted them on his website in an attempt at intimidation.