BY DAN HORN \nThe Cincinnati Enquirer
From the day he returned to Cincinnati, Larry Flynt billed his obscenity case as a knockdown, drag-out fight to decide once and for all who was right about community standards in Hamilton County. But just three days into the decisive battle, it ended suddenly with a handshake on the courthouse steps and a stunning deal that seemed to raise more questions than it answered.The deal cut short Mr. Flynt's trial Wednesday and left both sides proclaiming "total victory."
"We've accomplished what we set out to accomplish," a grinning Mr. Flynt said as he left court. "I'm very pleased." "He didn't win anything," countered Hamilton County Prosecutor Mike Allen. "He turned tail and ran." Although they couldn't agree on its meaning, the deal was clearly spelled out in court.
It required Mr. Flynt's Cincinnati corporation, Hustler News & Gifts, to plead guilty to two counts of pandering obscenity for the sale of pornographic videotapes. \nIt also carries a promise from Mr. Flynt never again to sell sexually explicit videos in Hamilton County. \nIn exchange, prosecutors dropped all charges against Mr. Flynt and his brother Jimmy, both of whom had faced up to 24 years in prison. \nCommon Pleas Judge Patrick Dinkelacker accepted the plea deal and promptly imposed a $10,000 fine on Mr. Flynt's corporation - $5,000 less than the maximum possible sentence. \n"This appears to be a very just resolution," Judge Dinkelacker said after announcing the plea agreement. "I think the people of Hamilton County will be satisfied with this resolution."
Many in the courtroom, including some of the lawyers, could barely disguise their shock that a deal had actually been worked out.
"I'm disappointed not to have a trial," said Mr. Flynt's Cincinnati attorney, H. Louis Sirkin. "But when an opportunity like this comes up, you have to look at it." He said the deal had nothing to do with a lack of confidence in Mr. Flynt's case or in the prospective jurors being assembled to decide his client's fate. Ultimately, he said, the issue was whether it was worth risking 24 years in prison when prosecutors were willing to end the case without requiring him to plead guilty to a crime.
"What was done today was probably in the best interest of everyone involved," Mr. Sirkin said. Even so, it was a surprising turn of events because Mr. Flynt has repeatedly portrayed his legal battle as a grudge match that dates to his early days here in the 1970s.
He lost his first trial in 1977 after then-Prosecutor Simon Leis convinced a jury that Mr. Flynt's Hustler magazine was obscene. Although the conviction was overturned on appeal, Mr. Flynt said he wanted another chance. He got it when a grand jury indicted him and his brother last year on 15 obscenity-related charges.
Mr. Flynt vowed it would be different this time because Hamilton County was now more tolerant of all forms of expression, including pornography. Even after taking the deal, Mr. Flynt said he was confident he was right. He said the videos are not necessary when the continued sale of Hustler in Cincinnati is proof enough that Cincinnatians are now more willing to accept sexually explicit material.
"We got what we always wanted," Mr. Flynt said. "We re-established the magazine in Cincinnati. We spent 22 years trying to accomplish that." Mr. Allen, however, noted that the trial was about the sale of explicit videos, not Hustler. None of the charges involved the magazine. The plea deal, he said, is an admission by Mr. Flynt that he couldn't win an obscenity case in Hamilton County.
He said the anti-pornography sentiments expressed by several jurors during the selection process this week proved that community standards have not changed much in two decades.
"I think they were staring down the barrel of that jury and got nervous," Mr. Allen said. "The other side fundamentally misjudged what has gone on, or not gone on, in this community during the last 20 years."
One of the prospective jurors, who asked not to be named, said most jurors wanted to see how the case played out. "Everyone was genuinely interested in the truth," the juror said. "But we wouldn't have known what that was until we were presented with the evidence."
While Prosecutor Allen is sure the jury would have voted to convict, he said he was willing to accept a deal in which Mr. Flynt did not plead guilty to a crime himself. The prosecution's goal, he said, was to rid the county of the explicit videos - not to send Mr. Flynt or his brother to prison.
Hours after the deal, Jimmy Flynt and his employees removed all of the videos that had been displayed for sale at the Hustler store on Sixth Street. He said they would be packed on Larry Flynt's private plane and flown back to California when he leaves town today.
The deal that made it happen began to take shape late Tuesday during a conversation between assistant prosecutor Steve Tolbert and one of Mr. Flynt's lawyers, Alan Isaacman. Mr. Isaacman said they were discussing a witness in the case when he casually asked why, in his opinion, the charges against the Flynts were so extreme.
Specifically, he said, he referred to the charges of conspiracy and engaging in a pattern of corrupt activity, which significantly raised the possible prison sentence for the Flynts.
"I thought it was overkill," Mr. Isaacman said. As the discussion went on, he said, it became clear the prosecution's only real concern was the sale of the videos.
"After awhile, I think they felt they could get what they wanted and we could get what we wanted," Mr. Isaacman said. "That's what got us to this point."
The next morning, Mr. Tolbert presented the tentative deal to Mr. Allen, who then called his predecessor, Ohio Treasurer Joseph Deters, to see what he thought of the offer.
"I told him I couldn't run to the courtroom fast enough to take that plea," Mr. Deters said Wednesday. "It's a huge win. It's a great deal." The parties reached agree ment by 10 a.m., but some were slow to embrace it.
"This deal," Jimmy Flynt would say later, "is kind of like kissing your sister." At 11 a.m., Mr. Allen, his prosecutors, the defense attorneys and the Flynts took their seats in court. Cathy Adams, a local defense attorney, was called in to enter the plea on behalf of the Hustler corporation. "We have a little change in plans," the judge said.
He noted that the plea involved only two of the 16 videos at issue in the trial: Rocco More Than Ever, Part 2 and Jeff Stryker's Underground. But he also made it clear the deal requires the Flynts to stop selling all videos. After accepting the plea and imposing sentence, he formally adjourned a trial that had been two years in the making. With the deal done, Mr. Tolbert and Mr. Isaacman thanked each other and shook hands on the courthouse steps. Within minutes, both sides began putting their own spin on the deal.
"I'm totally disappointed in the sense that I really do feel we could win on these videos," said defense attorney Paul Cambria, who represented Jimmy Flynt. "But anytime your client can get out with all charges dropped, that's a win day."
Mr. Allen said it was a win only for the prosecution and warned Mr. Flynt to resist any temptation to one day bring back adult videos.
"If he or anyone else down there plays games with me and tries to go back on their word, I will be there," he said. "We will stand tall to protect our children, our values and our mores." Although Mr. Flynt's old nemesis, Mr. Leis, declined comment, others were more vocal.
Anti-pornography activist Phil Burress, president of Citizens for Community Values, said the plea deal proves that Mr. Flynt's talk of crusading for the First Amendment was "a hoax." By taking the deal, Mr. Burress said, Mr. Flynt made it almost impossible for anyone else to sell explicit videos in the county.
"Mr. Flynt came to Cincinnati to lower our community standards and, in doing so, he made them higher," Mr. Burress said. "He sent a message to all pornographers to stay clear of Cincinnati."
Mr. Flynt said he did no such thing. Two years after his return, he said, Hamilton County residents can once again buy Hustler magazine. While there is no written agreement, he said, he thinks prosecutors will allow the sale of Hustler to continue.
But he said he understands if some of his supporters are disappointed he didn't keep fighting for the videos. Now, the only way anyone can obtain explicit videos in Hamilton County is by mail order or by traveling outside the county.
In a day or so, the prosecutor's evidence room will be the only place authorities - or anyone else - will be able to find unsold copies of the Hustler videos. Mr. Flynt held out hope, though, that he could return to Cincinnati one day to fight again. After all, he said, the prosecutors might have a change of heart and go after the magazine. And if they did, he said he would not compromise with another plea agreement.
"I don't know what will happen," he said. "But I assure you there will be no deal on that."
