Jennifer Duté is ready for Round 2.
"I can't wait to see Dinkelacker's face when I show up in his courtroom on the 14th," Duté chuckled. "I have not seen him since I've been out. He's got to see me."
That's Oct. 14 she's referring to, but that won't be a hearing on Duté's own retrial, which is scheduled for Nov. 7 before another judge. Oct. 14 is when Larry Flynt gets hauled back to Ohio to appear before Judge Patrick Dinkelacker for what the state claims is a violation of Flynt's 1999 plea agreement... and Duté plans to be in the front row of the spectators section, possibly wearing a "Flynt For Governor" button.
Y'see, Dinkelacker is the judge who sentenced Duté to a year in the slammer for allegedly selling obscene videos by mail to undercover Hamilton County cops; which conviction was recently reversed by the Ohio Court of Appeals because of errors committed by Dinkelacker at trial, and remanded for a new trial. That ruling was upheld on Sept. 25 by the Ohio Supreme Court.
Among the errors was Dinkelacker's refusal to admit, as a "comparable," Gangland 17, an allegedly obscene interracial video for which retailer Elyse Metcalf had earlier been prosecuted in the county, and which a jury had acquitted Metcalf of selling. The tape will have to be admitted in Duté's new trial.
But even if convicted the second time, Duté won't be going back to jail.
"The other thing that the Court of Appeals said was that there were no findings for organized crime, so what that means is, anybody else, even if I did get guilty, they couldn't send me to prison, because that's the only box they could check."
"The only reason that he [Dinkelacker] could send me to prison is because he checked the box on the felony sentencing findings — that's the form they fill out here in Ohio — that said that I was part of organized crime," Duté explained. "He checked that box, and once he checks that box, that means he could send me to prison. There's not any set-in-stone rules about what they qualify as 'organized crime,' as far as Ohio looks at it — 'This is; this isn't' — but he knew, by checking that, that he could send me to prison, and, 'Well, let her fight it out on appeal'; that's kind of the way he looked at it."
Duté was running her business out of her house, with only the assistance of husband Allan, and marriage isn't usually thought of as a criminal conspiracy, even in Ohio.
Still, Duté isn't out of the woods. Her new judge is Norbert Nadel, the same jurist who convicted photographer Thomas Condon for having illegally taken photos in a morgue in Cincinnati — and Condon's attorneys were also Duté's current defenders: H. Louis Sirkin and Jennifer Kinsley.
Local news media had reported that the Hamilton County Prosecutor's office hasn't made a decision whether to "continue to press charges, fight the appeal, offer a plea bargain or seek a new trial," but Duté has some ideas which way they'll go.
"We really don't know what they're going to do," Duté admitted. "According to different people, [Hamilton County sheriff] Simon Leis really wants to go out with a bang, and he's not getting any younger. Knowing Simon Leis, he's got to be fuming right now, especially after that 'Asshole of the Month' thing he got in the latest Hustler. I had to go downtown to buy a copy of it, though, at the Hustler store."
"All I do know is, I'm not taking a plea bargain and I'm not giving them my videos. If I plead, then they've got those videos to use against somebody else. That's what they want. They don't care about me anymore; they want my videos. I don't have any of my videos anymore. If they've lost their copies, they're screwed. I don't have any back-ups. I don't know that they have, but... I'm not scared of being retried, but the word should be out that they can forget about any plea bargain. It'll be a whole new world. It won't be the same as last time. I will be taking the stand."
Duté figures she's third in line at this point, after the upcoming Flynt hearing, and after the second retrial of Shawn Jenkins (Tip-Top Video), currently scheduled for January, 2004.
However, Duté only has kind words for her attorneys.
"He [Sirkin] and Jennifer Kinsley are on top of all this stuff. I really have to give it to Jennifer. She's 27 years old, and she's kickin' ass! She helped keep me together while I was in jail."
But Duté's already spent 224 days in prison, so she has a right to be a bit testy about some critics.
"There's a lot of anger still there. I'm not over being angry," she stated. "It really irritates me when people say, 'Well, instead of going to another trial, why don't you just do time served?' 'Hello! You missed the whole point! And don't bother speaking to me again!'"
