'Taken As A Whole' Controversy Erupts In Five Star Trial

PHOENIX – Courtroom 604 of the Sandra Day O'Connor Federal Courthouse was thrown into disarray shortly before 9 a.m. on Thursday morning when Judge Roslyn O. Silver announced from the bench that she had received a note from the jury.

While the exact contents of the note were not disclosed in open court, after discussing the situation with the attorneys on both sides, the judge brought the jury of 15 into the courtroom and told them that, yes, she was requiring them to watch the entire set of DVDs that had been charged with obscenity in the pending matter.

The jury had completed viewing Filthy Things 6, including all the extra material, in mid-afternoon of the previous day, and had seen the first scene of Gag Factor 18 before Judge Silver had dismissed them for the day. Still to come was about another 100 minutes of that feature, all the extras, plus the entire feature and extras of Gag Factor 15 and American Bukkake 13.

After the judge's instruction, the jury returned to Gag Factor 18, seeing stars like Christie Lee, Tiffany Rayne and Chelsea Zinn get their faces covered with saliva and cum as a result of deep-throating their partners.

Just before the final scene, featuring Angela Stone, the judge called the luncheon recess, asking the attorneys to stay for a few moments to continue discussing the amount of time it would take to finish watching all the video material. Apparently, Ken Whitted, co-counsel with Assistant U.S. Attorney Paul Rood for the government, had previously estimated that the entire video collection could be completed in eight hours, while Jeffrey Douglas, representing defendant Five Star Video co-owner Ken Graham, had estimated 12-14 hours, which Whitted claimed was much too high an estimate. However, with each disc running nearly three hours including extras, it seemed that Douglas' estimate was closer to reality.

Now the judge was looking for an accurate estimate, but no one seemed to have one. Her concern had apparently been triggered by the jury's note, and she wondered aloud if there might be some way to shortcut the video viewing, but Douglas stated that, "We believe it is the obligation of the government to show all the materials on the DVDs." Whitted promised to use the luncheon recess to obtain a more accurate estimate of how much video was left to view.

But after lunch, the viewing time was still unclear. The judge then questioned what the differences were between Gag Factor 18 and 15? Douglas noted that at least one difference was that 15 contained a parody of the torture committed at Iraq's Abu Ghraib prison, and this time it was Whitted who advised that it was the government's position that the features must be seen in full.

The controversy stemmed from the wording of the Supreme Court's Miller test for obscenity, which notes in at least two places that the work in question must be "taken as a whole," which previous courts have taken to mean that a charged movie must be shown in its entirety to the jury considering the charge.

Here, however, Judge Silver said that she was considering the differences between a feature being "viewed in its entirety" and one being "considered in its entirety," which she said could mean that the feature was sent with the jury back to the jury room for them to view there, rather than showing the feature in open court. She compared that stance to the fact that when the defense began to put on its case, the comparable videos that it would introduce to show the community standards of Phoenix would not be played in the courtroom, but would be sent back with the jury for them to look at at their convenience in the jury room.

No resolution to the problem was yet to be found, however, and the jury finished watching Gag Factor 18. At its conclusion, Whitted called FBI Special Agent James Lasut to the stand, to ask him about the search he and others had conducted of the Five Star warehouse, offices and video store, and Lasut's interview with Five Star co-owner Chris Ankeney.

On cross-examination, Dick Hertzberg, counsel for Ankeney and both Five Star defendants, got Lasut to admit that he had tricked Ankeney into coming to the Five Star offices while the search was going on, but that when he arrived and was interviewed, Ankeney had been truthful throughout his interrogation.

Rood then called FBI Special Agent James Mackie, who had been one of those in charge of the Five Star search, describing himself as the "seizing agent," and who had also reviewed all of the DVDs ordered and shipped to Special Agent Tod Price. Mackie described the layout of the Five Star offices and retail store, and took the jury through the premises using a series of photos.

On cross-examination, Mackie admitted that he had not found any of the four charged videos for sale in Five Star's retail store, and only two of them in its warehouse. He also agreed when Hertzberg suggested that Ankeney had been cooperative and polite. Mackie couldn't confirm Hertzberg's suggestion that Ankeney had had nothing to do with Five Star's website, but agreed that the search team had not found any defecation videos or child porn on Five Star's premises. He also agreed with Douglas' contention that Five Star also did not see bestiality videos, and that Five Star's owners had never tried to conceal either the business's location nor their ownership of it.

With Agent Mackie excused from the witness stand, Whitted began to play the first scene from American Bukkake 13, featuring Molly Rome getting her face and hair plastered by multiple splooges. At its conclusion, the judge dismissed the jury for the weekend – Judge Silver only holds trials on Tuesdays, Wednesdays and Thursdays, using Mondays and Fridays for office work – but the trial was hardly over for the day.

Judge Silver once again brought up the discussion about finding some way to avoid showing the four charged features in their entirety. However, where Whitted had intimated earlier that he might be able to find a way to avoid showing one of the videos (which could only be accomplished by the government dropping the charges against that video entirely), he now said that he and his associates had not been able to yet make a decision on the issue.

Judge Silver then suggested showing only the "Abu Gharib" scene from Gag Factor 15, asking Douglas if that idea would meet with his approval. Douglas, however, steadfastly refused to yield on the issue of showing all the videos in their entirety – "from the first second to the last," is how Judge Silver described it. Douglas said that he wanted to use the weekend to prepare formal argument on the issue, but that he felt that the entire notion of showing only part of a charged video was improper, and that to do so would require the court to make an artistic judgment which it did not have the legal power to make. He argued that if the court's proposal were proper, then in some future case, the government could charge, for instance, American Bukkake 1 through 12 as obscene, play only one volume in court and simply say that the rest of the volumes were similar and didn't need to be played. He termed the judge's suggestion as tantamount to reversible error on appeal, especially since the court had previously said that it wasn't for time constraints that the shortcut had been suggested, but rather so that the jury would not feel "punished" if required to watch all the videos in their entirety.

Judge Silver, however, was looking at Federal Rule 403, which allows the exclusion of evidence in a case if such evidence can be shown to be irrelevant, repetitive of have some other defects, and she repeated her request that Douglas explain how Gag Factor 15 differed from the already-seen Gag Factor 18, and how his client would be hurt if the jury were not required to see Gag Factor 15 in its entirety?

Douglas responded that his client had already been hurt, because before the court had broached the idea of only playing segments of Gag Factor 15, it appeared that the government might be prepared to drop all charges against that title, but with the court's suggestion, Rood and Whitted were apparently rethinking making that offer.

"There's something unholy about this," Hertzberg chimed in. "What you're doing is making it easier to convict on a count [of the indictment] that it should be."

The parties could come to no resolution on the issue, and the judge asked that both parties provide briefs on their respective positions by mid-day Monday, so that she could resolve the issue before court reconvened next Tuesday. With that, all involved left the courtroom for the day ... and knew that they would have very busy weekends.