Former CDBabes owner Mike Jones was almost off the legal hook: The state had until April 20 to appeal a judge's rejection to reconsider her original order to suppress the results of a search warrant. That was then, this is now: The state filed a notice of appeal April 19, one day before the deadline, and the case will drag on at least through the end of the year.
"[They] announced it very quietly," attorney J.D. Obenberger told AVNOnline.com. "I said we had not seen [the April 19 filing] and the judge said there is a copy in the court file, and they indicated it was mailed to me." The state's appeal has been scheduled for a status hearing before trial judge Sharon Prather on May 29.
Prather had ordered all evidence suppressed in a fall 2002 raid on Jones's home and office because the search warrant that prompted the raid was an overly broad prior restraint on free expression. That suppression order put the state's obscenity and child porn indictment against Jones in danger of being killed entirely.
But a day before the original April 20 deadline, the state announced to the trial court it filed with the Illinois Appellate Court, Second Division.
Jones could not be reached for comment by AVNOnline.com before this story went to press.
State Attorney Dan Regna has held that the warrant should have been divided into individual issues, child porn and obscenity, both of which were covered by the original warrant. Obenberger has held that Regna's argument came down to the seizure of alleged child porn not requiring "pre-seizure judicial review," but Prather had ruled that there was no way to divide the original warrant into two warrants, and that the original warrant merely let the state seize whatever it wanted.
"The notice of appeal is the statutory minimum to preserve appeal," Obenberger said. "The state has to order the transcript of everything that's happened, and it's going to be a huge transcript. And within fourteen days they have to file a docketing statement with the appeals court."
The appeals court would then set a briefing schedule and give the state between 35-40 days to file, with the defense getting the same period following that to respond. The state would then have between 14-21 days to reply, and the appeals court, Obenberger said, would likely wait "for awhile" to set it for oral arguments.
"This thing isn't going to be over for almost a year and a half," he said. "But if [the state] loses the appeal, they can still come back and re-indict him on obscenity. If they win on appeal, we're in the same position we're in now. This case could actually go on for another two to three years."
But that doesn't mean it's advantage, state, Obenberger emphasized. "Under the law, any ground at all that exists to sustain Judge Prather's ruling can be used by the appellate court to uphold the ruling," he said. "If the state loses they can file a petition with the state Supreme Court, and we can do the same thing. And it would be a 50-50 chance that the Supreme Court would take the case."
