A Los Angeles County jury today found Stephen P. Shoemaker and Stefan McDonald each guilty of placing six photos alleged to be child pornography on one of their Websites, www.blowout.com. Shoemaker was additionally convicted of possessing two alleged child porn photos, and one charge of duplicating the photos by copying them from one server to another.
However, each defendant was acquitted on two child porn charges, and the jury hung on two of the photos, as well as one blanket charge of "obscenity" involving a number of photos depicting bestiality, urination and excretion.
The defendants face as much as one year in jail and a fine of $1000 for each convicted count, plus Judge Carol H. Rehm, Jr., may require them to register with the state as sex offenders when sentencing is held on December 18.
The jury's decisions, however, were confusing from a legal standpoint.
"The only issue that they told me they addressed was, would a reasonable person know that the person was underage," explained Jeffrey Douglas, attorney for Shoemaker. "And so on the three counts that they acquitted, they said a reasonable person wouldn't know. On the two counts that they hung up on 11-1 in favor of guilty, one of them said a reasonable person wouldn't know."
However, Douglas said, if Judge Rehm had ruled in concert with the U.S. Supreme Court's decision in Ashcroft v. Free Speech Coalition (FSC) — the Child Pornography Prevention Act (CPPA) case — the trial would have ended days ago.
"The things that they [the jury] disregarded were the most astonishing," Douglas recapped. "I asked them after they were dismissed, 'Did you have any difficulty with the issue, as in many of the photographs, whether the pubic region was exposed or not?' They said, 'Oh, we didn't even discuss that. Since it was on an adult Website, that was it.'"
Trouble was, the Ashcroft decision very clearly states that it's the content of the material that's in question, not the venue in which it appears. But Douglas said that that fact will only help his client on appeal.
But though Douglas described the jurors as "well above average" and "smart," he was at a loss to understand how they came to the decisions that they did.
"It was bizarre listening to them," Douglas said. "What they paid attention to, they did right. But the things they didn't pay attention to, I would be totally devastated about my inability to communicate about to them during closing argument but for the fact that they disregarded the things that [prosecutor Alan] Honecutt said too. Honecutt and I both agreed on what the roadmap was to be able to get to conviction; you have to stop here, there and there. They disregarded it. They did not discuss three out of the four stops."
The jury also apparently ignored another clear Ashcroft v. FSC roadblock.
"The other thing they said was that the artist's testimony [Carson Gladston, an art professor from USC, who discussed hyperrealism in painting] didn't matter to them," Douglas recounted. "It wasn't that it was unpersuasive; the reason that the testimony was irrelevant to them was because as far as they were concerned, if it was a painting, it was a painting of a real child and that was all they cared about. So they even disregarded the judge's jury instruction that clearly said it had to be a photograph. They said they didn't care."
The jury also seemed to disregard established obscenity law under the Miller v. California decision as regards the community standards. The prosecution had presented Dr. Park Dietz, a former member of the Meese Commission, who testified that most people who looked at the allegedly obscene and child porn photos on the two Websites at issue in the trial would have found them "morbid and unhealthy." However, Douglas presented Dr. Gordon Klein, who showed that there were more than a million websites that carried the materials, as indicated by a Yahoo search, and then did what Douglas described as "a rather boring derivation" to show that there were a minimum of 25,000 Californians a day that would look at comparable images.
"They hung on the obscenity count 9-3," Douglas noted. "Now, their analysis on obscenity was pretty astonishing. They disregarded virtually everything. They said that the prosecutor need not have called Dietz. They also said that they did not review the comparables. They disliked Gordon Klein a lot, but they said it didn't matter. A couple jurors said they felt he made too many assumptions, but ultimately it didn't matter because they said that they determined the community standard, not from any evidence that was put in front of them but from their own experiences. And the ones who voted not guilty felt that there was no evidence of the community standard that would allow them to form an opinion beyond a reasonable doubt, and when asked by the prosecutor if there's anything else he could have done, they said, 'No, unless you could have turned up a survey of California adults saying they rejected this imagery.'"
Trouble is, the law requires that if none of the parties presents evidence as to the community standard, the jury is not free to draw their own conclusions as to what it is, nor to simply ignore what admissible evidence is presented.
But the jury wasn't the only one ignoring or misinterpreting the FSC case.
"The judge continued to make rules inconsistent with Ashcroft," Douglas stated. "He ruled for instance that penal code §311.4(d)(1)(a), which says sexual conduct is defined as being actual or simulated. 'Simulated' is defined as, 'An act is simulated when it gives the appearance of being sexual conduct.' Now one would think that after reading 'appears to be' being held unconstitutional in the CPPA case, one could understand that that's unconstitutional. The judge said, 'No, not a problem.'"
Douglas also criticized another of Judge Rehm's rulings, made at the very end of the last day of testimony, when, Douglas admitted, everyone was tired and tempers were short. Det. Scott McCallon had testified that several of the alleged child porn photos had been copied from one computer to another within seconds of one another, resulting in the "duplication" charge. Honecutt asked if a human being could have ordered to computer to do the copying, and Det. McCallon responded that one could.
On cross examination, however, Douglas got McCallon to admit that an automated back-up program on one of the computers could have ordered the copying, and the law is clear that, in the absence of direct evidence, if two circumstantial inferences can be drawn from one set of facts, the judge is duty-bound to instruct the jury that they must assume the most innocent inference is the correct one. Judge Rehm failed to so instruct them.
"We've got a lot of appealable issues," Douglas stated. "Perhaps the most egregious is that most of the photos that the jury found to be child pornography were not, under the Ashcroft v. Free Speech decision."
At the end of the prosecution's case, Douglas had offered a motion to dismiss several of the charged photos because it was clear that most of them did not involve any sexual conduct on the part of either the child depicted or the photographer, and such conduct is now a requirement for a photo to be found to be child pornography. Since most of the charged photos clearly did not involve such sexual conduct, Douglas moved that they be removed from the jury's consideration.
"Otherwise, every parent who's ever taken a picture of their kid naked on a bearskin rug could be brought up on child porn charges," Douglas noted.
The judge denied Douglas' motion, based on rulings in three California cases which, in Douglas' opinion, should have been rendered moot following the Ashcroft decision.
But even though Douglas was unable to argue the Ashcroft ruling, he felt the jury should have acquitted anyway.
"What they did tell me was indicative, that if the jury instruction had been correct, they would have acquitted because they said that the lewdness was imbued in all the photographs by virtue of its placement on the Website."
Douglas said that, in any case, his client would appeal, but he was concerned about what the judge might do at sentencing regarding whether the defendants would be branded as "sex offenders."
"If the judge does not exercise discretion," Douglas said, "they will have to register as sex offenders for the rest of their lives. We'll argue that as applied to Shoemaker, it would cruel and unusual punishment given that there is no indication of sexual interest in minors, and the fact that he runs a family arcade, the impact on him would be substantially greater than it would be on a regular person. The judge will probably stay that issue pending appeal, because once you're in that database, you don't get out."
