We're guessing it's something in the Ohio River's water.
What else could explain Hamilton County prosecutor Mike Allen's attempt to drag Larry and Jimmy Flynt back into a court case from which they'd been dropped five years ago?
The three judges on the Ohio First District Court of Appeals had the same (well, maybe not quite the same) question... and the same conclusion:
"When a case is over, it's over," wrote Judge Mark P. Painter in a decision handed down this morning. "This case was over in 1999."
It was in 1999 that the Flynts' attorneys reached an agreement with the county to release the Flynts from then-pending pandering obscenity charges by having their corporation, Hustler Gifts and News, be substituted as the defendant, plead guilty, pay a $10,000 fine and promise never to sell the charged videos in the store again.
But Allen claims that the store is once more selling sexually explicit tapes and DVDs in the county, that that's a violation of the plea agreement, and that the Flynts are liable for breaking the agreement.
According to the recorded transcript of the plea hearing, the prosecuting attorney stated that the agreement was, "Larry Flynt and Jimmy Flynt personally, and Hustler News and Gifts, Incorporated, corporately[,] agree to remove immediately, all existing videos from Hustler News and Gifts at 34 East 6th Street in Cincinnati, Ohio, and will not in the future, disseminate or cause to be disseminated, any sexually explicit videos in Hamilton County, Ohio... [And] if Larry Flynt or Jimmy Flynt or Hustler News and Gifts, Incorporated, violate[s] any of the terms of the agreement, the entire plea agreement becomes null and void, and all charges in the original indictment will be reinstated."
But that's not what the docket, which reflects the judge's version of the agreement, says. That states that the charges were dismissed "for the reason that Hustler... stands convicted and sentenced..., as is of record."
On several occasions in 2003, though, undercover cops made several adult video purchases from the Hustler Store at its new location at 411 Elm Street, and on June 18, 2003, the prosecutor went before Judge Patrick Dinkelacker, the judge who had presided over the original plea, and asked him to reinstate the charges against the Flynts. The Flynts filed a writ of prohibition with both Dinkelacker and the Court of Appeals to prevent Dinkelacker from re-hearing the case, arguing that he lacked jurisdiction. A hearing on the writ was held on Mar. 24
"Legally, it occurred to the panel that the Flynts would be strangers to the indictment," Appeals Court Judge Ralph Winkler said at the hearing.
Assistant prosecutor Ronald Springman, Jr. attempted to argue that the original dismissal of charges against the Flynts was "conditional," and that since the Hustler Store was again selling videos, the agreement was broken and charges should be reinstated.
"The state, however, claims that the dismissal was merely ?conditional,' wrote Painter. "The problem with that theory is that there is absolutely no law to support it. The state has been unable to cite one case where what it seeks here has ever happened. That is because it cannot ? criminal cases cannot be ?conditionally' dismissed... The state seeks some kind of ?super-secret probation' that does not exist in Ohio ? or anywhere else that we can find... When a criminal matter is dismissed, it is ended... When the state voluntarily dismisses a case, it is terminated. Terminated means done, finished, over, kaput."
The Flynts had also argued that the original agreement was an unconstitutional restriction on their First Amendment right to sell non-obscene adult material, but the court never had to reach that argument.
"The [hearing on the writ] went extremely well," noted Larry Flynt's attorney, Paul Cambria, "and their opportunity to attempt to reindict the Flynt brothers passed last Friday [Mar. 26] when the statute of limitations ran, so they can't reindict them. That's the end of that."
"Whatever motivation the state prosecutors had," opined H. Louis Sirkin, who is representing Jimmy Flynt, "one was, I think, to try to bring Larry Flynt into a situation he's not involved in and was not involved in, but number two, I think they wanted to assure themselves that any new case or any trial would go back in Dinkelacker's courtroom."
Dinkelacker was the judge who had sentenced Jennifer Dute to a year in jail for allegedly having sold obscene tapes in Hamilton County, and refused to allow her out on bail pending appeal. His decision was reversed by the appeals court, and Dute remains free pending retrial... and the birth of her twins.
"If they bring new charges or a new indictment," Sirkin continued, "it would have gotten re-rolled; it could have gone to, for instance, the judge we had for Elyse Metcalf, and so they didn't want to take that risk... The reality is, they were attempting to judge-shop."
Cambria also said that if the county attempts new indictments against anyone for new sales of material, the charges could only be against Jimmy Flynt, since Larry no longer owns any interest in the Cincinnati Hustler store.
