The Stagliano Obscenity Trial: Day 0

WASHINGTON, D.C.—In WWII, soldiers were well familiar with what they called "the old Army game": "Hurry up and wait." Journalists who cover court hearings are familiar with the sentiment as well.

Though the John Stagliano obscenity trial was scheduled to start today, in fact, the attorneys involved in the case have been in Washington and hard at work since yesterday, poring over questionnaires filled out by the potential jurors in the case.

And although Judge Richard J. Leon had scheduled a hearing for noon today to deliver his ruling on whether all or any of the three proposed expert witnesses—Dr. Constance Penley and Dr. Lawrence Sank for the defense, and Dr. Chester Schmidt for the prosecution—would be allowed to testify at trial, when this reporter arrived at the courtroom just before noon, court personnel stated that the hearing had been pushed back to 2 p.m.

But when the appointed time arrived, the judge spoke informally with all of the attorneys involved—Pamela Satterfield and Bonnie Hannan for the prosecution; Allan Gelbard, Paul Cambria and H. Louis Sirkin for the defense, with Robert Corn-Revere acting as local counsel—and indicated that he was not yet ready to rule on the experts, and suggested that they return to their task of reviewing the questionnaires.

Both the prosecution and the defense had submitted suggested questions to be included in the questionnaire, and while it's unclear which questions were approved for the official questionnaire—the judge has ordered the attorneys not to discuss the case with the press—it's likely that, aside from the usual questions about age, race, employment, social activities, previous contacts with the judicial system (either as a juror or as a defendant) and whether serving on the jury would case the person economic or physical hardship, the defense will probably be very interested in the answers provided to several of the government's suggested queries: "Do you believe the adult entertainment industry, and those affiliated with that industry, should be allowed to operate free of government regulation?"; "Do you believe the government's regulation of the adult entertainment industry (adult sexually explicit material or pornography) is too lenient?"; "The jury in this case wil be required to view some evidence that includes adult sexually explicit material (pornography). Would your personal reaction to such material or your personal moral or religious beliefs prevent you from looking at such material and considering it as evidence in this case?"; and "The jurors in this case wil be instructed to decide the case on the basis of all the evidence presented during trial and the law as provided by the Court. Jurors wil also be instructed that they must not be influenced in their decision by personal likes or dislikes, opinions, prejudices, or sympathy. Would your personal reaction to adult sexually explicit material (pornography) or your personal moral or religious beliefs prevent you from following these instructions?"

While the current size of the jury pool is unknown, if Judge Leon has followed the procedures used in other federal district courts, all of the jurors would have been drawn from the District of Columbia, a much smaller area than, say, the Middle District of Florida, where Max Hardcore was tried. Nonetheless, there are likely over 100 potential jurors in the pool, and the attorneys will have to study each potential's responses to the questionnaire in order to decide whether to challenge the person "for cause"—that is, because the person appears to have some hardship or an indication that he or she might be biased in favor of one side or the other—or as a "peremptory challenge," which allows attorneys from either side to reject a particular potential juror for no particular reason. Peremptory challenges are always limited, and it is not known how many Judge Leon will allow in this case.

The trial itself will take place in Judge Leon's courtroom on the sixth floor of the E. Barrett Prettyman Federal Courthouse, 333 Constitution Avenue, about equidistant from both the Supreme Court Building and the Capitol—and indeed, in early 2002, the Supreme Court itself heard cases in the Prettyman Courthouse while its own building was being searched for possible anthrax contamination.

Our brief look at the judge's courtroom showed it to be large, with a high ceiling, and filled with electronic apparatus, including a large flat-screen TV at one end of the jury box, with its screen turned toward the jury, so it is unlikely that attendees at the trial will be able to view the charged movies—Storm Squirters 2, Milk Nymphos and the trailer for Fetish Fanatic 5—when they are played during the trial.

Even as this article was being written, yet another hearing was scheduled for 5 p.m. today—and just as the article was completed, another call came in advising that that hearing had been cancelled, and that court would reconvene at 2 p.m. on Thursday.

Or will it? Only time will tell.