PHOENIX – While the dismissal of charges against Five Star Video co-owner Ken Graham was Tuesday's big news (see previous story), much of the day was spent in argument over two important (and related) issues that might make or break the government's case against what were then the four remaining defendants: Corporations Five Star Video LC and Five Star Video Outlet LC, and their owners, Graham and Chris Ankeney.

Defense attorneys Richard Hertzberg and Jeffrey Douglas had spent weeks back in mid-2006 having investigators scour the Phoenix area for stores that were selling adult materials that they felt were similar enough to the videos charged with obscenity here – Filthy Things 6, Gag Factor 15 and 18, and American Bukkake 13, all produced and/or distributed by JM Productions – that if the jury saw them, it could infer that the community standards of Arizona were such that the videos selected for prosecution were no big deal to the citizens of the state; that material similar to the indicted videos was readily available for the public to purchase.

The prosecution, citing U.S. v. Hamling and a handful of other cases, had argued that it was not required to present any evidence of Arizona's community standards; that the jury could simply look at the charged videos and use their own life experiences to decide whether the sexual acts depicted were acceptable to their community. Further, prosecutor Ken Whitted, the U.S. Department of Justice attorney who argued the case Tuesday, took the position that it was not necessary for Judge Roslyn O. Silver to send any comparable material to the jury for consideration, but focused his objections mainly on two types of evidence: Still photos from several hardcore magazines which had been purchased at area stores and, perhaps most significantly, the Phoenix Sky Harbor Airport, and sexually explicit material that had been downloaded by Five Star's investigators in the Tucson Public Library, apparently in full view of other library patrons.

Douglas had also asked that comparable DVDs which had been offered by attorneys for JM Productions, when it was still a defendant in the case, also be considered as comparables as to his defendant, Ken Graham, and Whitted's specific objections to that material coming in were unclear.

Hertzberg made the telling point that the comparables were necessary because an obscenity prosecution is unlike any other type of criminal prosecution, in that the materials in question are presumed to be protected by the First Amendment right up until the moment the jury may find any or all of it obscene. This is unlike, for instance, the loot in a bank robbery, which itself may be clear evidence of a crime having been committed, whereas videos are assumed to be innocent (protected) unless and until the jury says otherwise, and that therefore, the jury needs to see what other similar material is available in the community before it can make its determination on the charged videos.

Judge Silver was apparently concerned about the mass of comparable material the defense had gathered, and may have been mindful of the note which the jury had sent to her after watching only Filthy Things 6 and the first scene of Gag Factor 18, which suggested that they were balking at being forced to watch all of the charged videos in their entirety – something the defense had argued was a requirement under the Supreme Court's Miller test for obscenity.

The judge's concern for the jurors may have been what prompted her to question extensively when and where the comparable material had been purchased, and a good portion of the morning's argument focused on the Tucson library downloads and how easily the public could see sexual material on the library computers.

Douglas explained that since the U.S. Supreme Court's ruling in U.S. v. American Library Association, libraries had been free to filter their Internet-connected computers for sexual materials or not, but that if they didn't, they would not be able to receive certain federal funding. In Tucson's case, it gave patrons the option of whether to access the Internet through a filter or without one by simply making an on-screen choice at the beginning of each Internet session. However, since Whitted indicated that he was not familiar with that case, the judge stayed her ruling on the comparables until after lunch, when both sides would have time to research the case law more thoroughly.

With that, most of the rest of the morning was taken up by playing the final two scenes of American Bukkake 13, featuring Sierra and Sabrina Jayde getting their faces and bods cum-bathed – after which, taking his cue from the judge's comments of the previous week, Whitted moved to withdraw all charges relating to Gag Factor 15, so that it too would not have to be played for the jury.

Whitted then called, as the prosecution's final witness, James Puckett, a former employee of Five Star, who was granted immunity in order to testify to acts he had performed and observed at the defendant businesses. Puckett then testified that approximately 90% of Five Star's business was in adult videos; that he received most of his job duties from Ankeney, and that Graham was at the business only sporadically – all of which eventually led to the dismissal of charges against Graham later in the day.

After Puckett's testimony, the judge excused the jurors for lunch, and once more took up the issue of comparables, with both sides arguing their understanding of the American Library Association case. It was at that point that Judge Silver raised a new concern: Could the defense present evidence of how many patrons had used the library computers to look at or download adult material? Douglas responded that their investigators had not uncovered that information, and that he didn't see how they could do so.

Judge Silver decided that that lack of information was a problem, because it appeared that under her view of the comparable evidence, it wasn't enough to simply show that comparable material was available for sale (or download) in the District of Arizona; it was also necessary for the defense to present evidence that citizens had actually purchased or downloaded the material, and even further, that some significant portion of them had done so. She therefore excluded the library downloads from the comparable evidence that would be presented to the jury.

"This is unprecedented," Douglas later remarked. "I've never heard of a case where the defense had to prove the community's rate of consumption of comparable material, and if that became a standard requirement in obscenity cases, I don't see how any defendant could ever get any comparable into evidence."

The judge also required the defense to cull through roughly a dozen adult magazines which had been presented as comparables, and select specific photos which depicted activities substantially similar to the sex acts presented in the three remaining charged videos, and in the end, after much argument, during which Whitted renewed his objection that still photos are not comparable to the actions depicted in the videos, the judge finally accepted excerpts from six of the magazines.

Attention was then turned to the comparable videos which Douglas wanted to introduce, which had been gathered by the JM defense team. Judge Silver asked from where those videos had been obtained, and Douglas responded that they were from "a remarkable cross-section of the geographical area surrounding the courthouse," and that some had been obtained by videotaping the pay-per-view (PPV) channels at local hotels.

Judge Silver then asked whether Douglas had any evidence of how many hotel patrons had watched the proffered hotel recordings, and when Douglas responded in the negative, she excluded the PPV vids as evidence. Douglas, however, maintained his position that the defense shouldn't have to prove that anyone had watched the comparable material; simply that it was available to them. The judge, however, took the position that that information could be obtained from the hotels, and since it had not been, the evidence could not come in.

The judge also ruled that the comparable videos which the JM defense team had purchased, and which Douglas wanted to introduce in his case, were also excluded.

The judge then heard argument on what are called Rule 29 motions: Motions for dismissal of charges based on a lack of evidence produced by the prosecution. Hertzberg argued that his client, Chris Ankeney, had not had any oversight or even any proven connection with, the entity through which FBI agent Tod Price had purchased the videos charged in this case, nor did Ankeney select the videos to be offered through the website, and that therefore he did not possess the scienter (guilty knowledge) required for him to be convicted. Whitted argued that both the documents of incorporation of Five Star Video and Five Star Video Outlet, as well as the testimony of James Puckett, tied Ankeney directly into the day-to-day operations of the business, and the judge agreed, ruling against Hertzberg on the motion.

Douglas made similar arguments as to his client, Ken Graham, and as related in the previous story, the judge agreed and dismissed all charges against Graham. However, Douglas had also argued that the defendants should have been freed based on the government's failure to present evidence that Ankeney and Graham had violated Arizona's community standards, and although there was much discussion of the subject, the fact that Douglas' client eventually had the charges against him dismissed seemed to leave the question of what community standard evidence Hertzberg could later present somewhat in limbo.

Perhaps today's proceedings will reveal the status of that evidence.