Troubling Issues In Karen Fletcher Prosecution

PITTSBURGH – By all accounts, Karen Fletcher, who operated until she was forced to shut it down in the wake of her bust for obscenity in 2005, is not a well woman.

By her own admission, Fletcher has almost no memory of her life up to the age of 14, and believes that she was physically and sexually abused as a child. She married at 15, after living on the streets for a year, but that relationship was mentally abusive. She suffers from irrational fears – for instance, seeing dirty fingernails throws her into a panic – and she has become a social recluse, testifying in an affidavit that, "Being around other people creates a great deal of anxiety for me." Because of this agoraphobia – literally, "fear of the marketplace" – she has been excused from the court hearings that have taken place in her case so far.

It is with that background that one might question the decision handed down by U.S. District Judge Joy Flowers Conti last week that statements given by Fletcher to FBI agents in conjunction with a search warrant should not be suppressed.

Although the FBI agents questioned Fletcher in her home, and testified at a suppression hearing that even though they had received a complaint of "suspicious activity" from PayPal, which processed the $10 fees that Fletcher's 29 subscribers paid to access the stories on her site, that when they spoke to her in February of 2005, they responded that they "didn't know" whether she was in trouble when, at the conclusion of the interview, Fletcher asked if she was, and about her First Amendment rights.

But Judge Conti decided that despite Fletcher's vulnerable state of mind, the agents need not have read Fletcher her Miranda rights before questioning her, even though the government must have had some idea about busting her for obscenity before the FBI visited her home.

"The judge found that that was no problem," summarized First Amendment advocate Lawrence W. Walters, one of Fletcher's attorneys, "that she was free to not give a statement and to refuse to cooperate at any time, so there was no custodial interrogation, which shows you what's left of the Fifth Amendment."

But as disappointing as that ruling was, Walters sees hope in the fact that a second motion, to suppress physical evidence seized from Fletcher's home, is still under advisement.

"We also filed a motion to suppress evidence based on invalidity of the warrant, and that motion has not been ruled on yet," Walters said. "The court is going to give the government more time to present more evidence or to get its ducks in a row because it was really caught off-guard. Basically the argument is, when the government sought the warrant to seize the materials from her house, they made an application for a search warrant, and attached something called Exhibit A to the application, and said the attached Exhibit A had stories attached to it that involve sexually explicit matters, and they said they basically asked the court to determine whether there was probable cause for obscenity and to issue the warrant. There was a big red well full of folders."

"Our information to this point had been that all that was given to the magistrate were the six stories that were ultimately charged as obscene in this case," Walters continued. "It turns out that the agent testified at the hearing that he gave the magistrate all of the stories downloaded from the website; that there was no inventory of the stories; that they were never mentioned by title. There was no indication what stories the magistrate actually reviewed. The warrant was issued fairly quickly, indicating there was insufficient time to review all these stories, hundreds of pages, and determine whether each one was obscene. But the judge said, 'You must seize these stories in attached Exhibit A,' and gave the agent a warrant to go do that. There is no attachment to the warrant indicating what those stories are. The agent doesn't know at this point what stories were originally given to the judge because he didn't keep a copy and didn't have a log or inventory of what the stories were, so he was essentially given a general warrant to seize expressive material, which is a big no-no."

Walters believes he has now been able to reconstruct what stories were contained in the original Exhibit A, even though the government has seized Fletcher's computer and refused to return it, even in response to Fletcher's demand.

"What that means is, they have seized expressive works under a general warrant without any description of what was to be seized and have violated the First and Fourth Amendments in a number of ways," Walters stated.

Judge Conti gave the government until Feb. 12 to present further evidence of the circumstances surrounding the issuance of the search warrant, or in the alternative, to stand on the record as it currently exists. The parties will then have one month to submit findings of fact and conclusions of law, along with proposed orders which the judge can sign off on, and Walters says that he and co-counsel Jerry Mooney will then have approximately ten days after that to respond to the government's proposals, as the government will to his.

"So the court will rule sometime after March 24 whether there's been a violation on the warrant issue," Walters explained, "and sometime after that, the parties will go to trial. We don't have any more constitutional motions that we're going to file. There will be motions in limine directed to evidence that will occur shortly before the trial itself, and then we'll go to trial maybe sometime in the summer."

At least some of those motions in limine will involve whether the Red Rose stories, which generally involve forced sex acts, some committed on (fictional) children, violate the community standards of Allegheny County, since Fletcher's residence in Donora, Pa., is about 20 miles south of the Allegheny County seat, Pittsburgh, where her trial will take place.

"This is not the kind of case as where she would be dragged in from another part of the country to face community standards in a place where she couldn't block, where she couldn't prohibit users from accessing," Walters noted. "They're going to argue that she is presumed to know the community standards of Pittsburgh, Pennsylvania. The other side of the coin is, it's not a bad community from our standpoint. There's just about every kind of material available in Pittsburgh that would be found on this site or other adult websites, a lot of text and so forth. This is very specialized material, special interest material to be sure. I don't know how much we're going to find anywhere in the country, but it was available on the Web, and we'd prefer to have the court consider national standards; we think national standards is what the Supreme Court is ultimately going to go to based on the concurring opinions in the COPA case. There's an argument that even national standards aren't sufficient, that there need to be something like Internet standards or cyber standards. So far the courts haven't gone there and there doesn't seem to a lot of support for that argument, but it's something that we've argued and talked around, and ultimately we won't know what standards will be used until the trial."

But the logistics of the trial also worry Walters, given his client's delicate condition.

"This is frankly an extremely damaged woman," Walters confided. "She has significant mental health issues, some of which are detailed in her affidavit. She's agoraphobic; can't leave her house. Frankly, I don't know how long she would last at a trial or in jail or any kind of confined circumstance. We're doing what we can to try to resolve that. She's been excused from the hearings so far based on her agoraphobia; the judge has recognized that that's an issue, and she's probably got some other things, but the bottom line is that she has endured significant sexual abuse and other forms of abuse throughout her childhood and into her adult life, lived on the streets for a while; everybody in positions of trust has violated that trust with her and at this point, she's doing everything she can to survive. She lives in basically a rundown house."

Part of Fletcher's defense team is Dr. Marty Klein, the well-known family therapist, who has given an affidavit relating to the therapeutic nature of the Red Rose postings.

"In a sense, the charged stories are her 'journal,' serving as a method of self-help treatment," Klein averred. "These stories can be viewed as helping to resolve internal conflicts, and feelings of shame and guilt. The ability to express such deep emotional and psychological thoughts and feelings should not be deterred. Mainstream psychotherapy is virtually unanimous in its declaration that such expression contains therapeutic value."

"These stories, unlike commercial purveyors of adult material, were not written for any purpose other than to try to make herself better," Walters added. "They were recommended by a therapist as a means of trying to bring some closure to some of what she had been through. All the stories relate to issues that have happened to her, to demons that she was trying to battle. She was told to try to own some of these issues and take control of them, write them down, share them with other people. The unusual thing about the Internet is that it allows people who formerly had no way to socialize to get some degree of socialization, and agoraphobics are a prime example. These people couldn't leave their houses, and now she can socialize with other people. Even agoraphobics need that, and she was doing that by encouraging other people to contribute stories and talking to them and going back and forth, and in a lot of ways, these stories, the distribution of them and the writing of them, may very well have saved her life. This is a very different situation than somebody who's cranking out adult material for profit. She never made a profit on it; she lost money if anything; charged enough money for people to get access so she could pay her server bills, and she had something like 20 people as members. This is not who you would expect to be the prime candidate for federal obscenity prosecution. The government will gain nothing by prosecuting her. She's already out of business. She shut the website down out of fear as soon as the government came after her, and the stories were not written with the same kind of intent as a commercial distributor. They were a therapeutic effort to try to make herself better."

The motion to suppress notes that it's been about 35 years since an obscenity prosecution involving text-only materials has been mounted, with Tim Wu, a Columbia University law professor who has written about obscenity law, describing Fletcher's case as "astonishing."

On the other hand, Patrick Trueman, a former Justice Department obscenity prosecutor currently working for the ultra-right-wing Alliance Defense Fund – its founder was chief counsel for the Meese Commission – opined in an article for the American Family Assn.'s (AFA) website that Fletcher's prosecution is justified.

"This woman stepped over the line," Trueman charged, "and it has always been thought, in federal law, that for an obscenity conviction, you do not need pictures or video, but the storyline of the book itself can provide the substance of the prosecution."

Moreover, Trueman dismisses the idea that the stories were therapeutic for Fletcher and others.

"The fact is that doesn't give you license to then violate federal laws that are designed protect children from being sexually exploited," Trueman claimed. "So a woman who was sexually exploited as a child does not have the right to portray the sexual exploitation of children on a website for hire."

A poll on the AFA website revealed that nearly 60% of the site's largely fundamentalist readers would like to see Fletcher receive the "maximum penalty," and also that the government engage in a "stronger crackdown on obscene written material."

Fletcher's 29 subscribers will probably be sad to read that.