STAUNTON, Va. - The four-day trial of After Hours Video owner Rick Krial, his employee Tinsley Embrey and Krial's corporation ended with the jury, in the words of prominent adult defense attorney Paul Cambria, "splitting the baby"; that is, finding both Krial and the corporation guilty of misdemeanor obscenity for the adult DVD City Girls Extreme Gangbangs, acquitting them of the same charge for the movie Sugar Britches, and acquitting Embrey on all charges. Krial received no jail time, and he and his corporation were fined a total of $2,500.
Cambria represented Krial; Embrey was represented by Cincinnati-based advocate H. Louis Sirkin, while local attorney Tate Love represented the corporation. This team was pitted against Commonwealth prosecutor Ray Robertson, and Matthew Buzzelli of the U.S. Department of Justice's Child Exploitation and Obscenity Section.
"It's pretty ridiculous, to be honest with you," Cambria told AVN. "They acquitted the clerk, which is not a big surprise, especially since one of the jurors in voir dire said there was no way that the clerk should take responsibility for whatever. So of course, Lou gets two acquittals. I get an acquittal on the one count and they convict him on the other count, and when we poll the jury afterwards, [one juror] says, 'The multiple partners, I thought, exceeded our standard.' And I mean, it was a hair-splitter to me. One was a gang bang and one was just one [scene] after another... Same sex acts, same stuff, but they drew the line at multiple partners. I never had one where the material was that close in what it had content-wise, where they split the baby."
It was a somewhat disappointing end to the hard-fought trial, which saw four motions for mistrial during argument and testimony, as well as major disputes over the "community" upon whose standards the verdicts were to be based, and over the refusal of the court to allow any "comparable" material to be admitted into evidence.
"We were confined to the community standard of just the city of Staunton, which only has like 22,000 people," Sirkin told AVN, "and just outside of Staunton, there are video stores that have back rooms; there are adult bookstores. It's only 30 miles from Charlottesville; it's about 18 miles from Harrisonburg, and it's just outside of Waynesboro, all of which have adult material available. The judge wouldn't let us bring in anything that was from outside of the city. We did a proffer of stuff that you could hit on the Internet, and what you could buy at these other stores. It's our understanding that there were two stores in town before this store opened that did have back rooms, and then once the indictment came down against this store, they pulled their adult DVDs, and of course, we could never get the owner to call us back."
Community standards played a big role in the trial, as the prosecution attempted to qualify former Staunton Police Chief Butch Wells as an expert on what material would or would not meet the local standard.
Cambria objected, arguing that Wells was hardly representative of a cross-section of the community, and that from his testimony thus far, "It’s clear that these are his personal opinions."
Wells was questioned further out of the hearing of the jury, where he testified that during his 37-year residence in the community, there had been no brothels, no adult arcades and just one bust for prostitution. He also claimed that he did not recall any local businesses that had sold adult material, despite the fact that it had been established in pre-trial arguments that local retailers Crossroads CDs & Tapes and Desire's Consignment & More had both sold adult videos.
Judge Thomas H. Wood took Cambria's objection under advisement, and after researching the issue for nearly an hour, ruled that, "Based on the cases I’ve read, he isn’t an expert."
As for the comparables: "We tried to introduce them, but he turned down all of our comparables," Cambria said. "He would not let us put in stores that were readily selling the tapes within 900 feet of the city line. He held it [the "community"] to the city line, and we took the position that it's up to the jury to decide the breadth of the community, and he said, 'No, it's the city of Staunton only,' and would not let us – we had about 12 stores, DirecTV, all the rest of it, he would not let us put any of that in."
Robertson had barely begun his opening statement when he faced two defense objections and calls for a mistrial. In the first instance, he referred to a statement allegedly made by Embrey to police concerning co-defendant Krial, which under Virginia law, the jury is legally barred from hearing, while in the second, Robertson argued that the availability of sexually explicit material "is a serious community problem."
Although Judge Wood sustained the objections, he refused to grant a mistrial, and Robertson continued this theme during his closing argument as well.
"It’s great to say, 'To each his own' … but not when it destroys the morals and decency of a community," Robertson told the jury.
"What happened in the summations is, this prosecutor started with the children and the call to arms about, 'Take care of our community; don't turn it into Las Vegas,' all this stuff, all of which has traditionally been error, and of course, we moved for a mistrial," Cambria said. "We'll see what the law is here in Virginia – the judge has given us 60 days to file our briefs – but everywhere else, a call to morality, decency, 'save our community,' 'save the children' and all that other stuff, has always been reversible error, and so we've got all that in this case because he [Robertson] said it all."
Similar objections were raised during the prosecution's summation in the Max Hardcore trial in June in Tampa.
"They also attempted to shift the burden to us, which is another error," Cambria said, "because in their summation, they said, 'We challenge the defendants to prove that the material has serious scientific value.' Well, you can't shift the burden to us, but they did with that statement, and obviously, we objected to it."
Robertson's argument was unusual for another reason as well.
"There's one thing that was new, that I'd never heard before: You don't 'ejaculate,' you 'excrete semen'," Sirkin said. "I've never heard that terminology before. I thought when you came, you ejaculated; now whenever I ejaculate, I'm going to think that I'm taking a piss or something. The commonwealth attorney, he would never say the word 'ejaculate'; he would say you 'excreted semen,' so I thought that was interesting. And of course, we got the typical 'unhealthy removal from the anus to the mouth' and that kind of stuff."
Also problematic was the prosecution's "star" witness, Dr. Mary Anne Layden, a psychologist with the University of Pennsylvania who has been vocal about the "harms" of pornography, even testifying to that effect several times before congressional subcommittees.
"She's their new go-to girl," Sirkin said. "She's the one that believes watching this stuff sends out toxic impulses in your brain. I wanted to wear aluminum shields around my head to stop the toxins from coming in. I joked about it before we went over yesterday when we knew the movies were going to be played, that maybe we should wear our tinfoil hats."
According to a report in The Hook, a local weekly tabloid, Buzzelli asked Layden to evaluate a still image from Sugar Britches.
"The female has no pubic hair, no breasts, and an angular body type," Layden said. "Typically this is someone whose body has not yet fully developed sexually. In most industrialized countries, this occurs at the age of 12."
This brought an immediate objection from the defense.
"Right from the beginning," Cambria said, "the Commonwealth has tried to make this an underage case. They have no proof and no good faith basis to allege that any one of these performers is underage and I move for a mistrial."
"It speaks for itself," Buzzelli replied. "That girl is clearly made to look like a child."
"It’s no accident she looks the way she does," Robertson added. "This film does appeal to pedophiles. Pedophiles will buy this film and get off on it."
"Give me a break!” Judge Wood interjected. "You’re saying she’s like a child because she has small breasts? I saw this movie; every one of these women was shaved."
It was a major bone of contention, because the judge had warned the government prior to trial that it would not be allowed to turn the trial into a child porn prosecution. Even so, Buzzelli argued that the industry's 2257 recordkeeping was flawed, and that it was possible that an underage performer had slipped into the cast of Sugar Britches.
The parties argued the issue for nearly an hour, with Judge Wood finally concluding, "I don't want to keep the jury here this long and get a mistrial; I don't want to do it."
"Layden damned near caused a mistrial for them," Sirkin said, "because she started talking about that one of the actresses looked – because she was small-breasted and she was shaved – that she started to say that she gave the appearance of like a 12-year-old and all that, and of course, we objected and the judge was just livid, and admonished the prosecutor. There had been adamant pretrial determinations by the court that there would be absolutely no reference to children at all; that that was not a part of this case at all. They started to get some fringes with that; he scolded them a couple of times, and he was upset, and if it had not been for the fact that we were already at the end of the third day of trial – the jury was empanelled; we'd gone through most of the testimony – he just was hell-bent in a way not to grant a mistrial, and he really admonished them."
"The other thing that was really interesting was that the government's position was that she should have been permitted to talk about prurient interest, even though she's not from that community, because prurient interest would be the same everywhere," Sirkin added. "That's not the position that we've been facing for the last 35 years, where they say, well, you know, unless they're familiar with the contemporary community standards, how do they know what appeals to the prurient interest here? And we've been arguing for years, whether you live in Dallas or you live in Jackson, Mississippi, prurient is basically the same, and now they [the government] were arguing that, and they had a difficult time getting to that argument, and she started to go off on that and the judge went wild, and we moved for a mistrial. We took a break, and then she came back and her testimony was very short."
"We made an idiot out of their expert, Dr. Layden, who wasn't credible at all," Cambria said, "and in fact, the jurors said they ignored her, but they knocked out all of our comparable stuff. We proffered it into the record, but of course, the jury never got to see it."
Krial's conviction presents serious problems, because as has been reported previously, Robertson has nearly a dozen movies that he wants to bring to trial, and with Krial's conviction on misdemeanor obscenity here, all future obscenity charges against him would be felonies, carrying much greater sentences.
"We've asked the judge to not impose the judgment of conviction, to suspend it until we've had an opportunity to brief the error," Cambria said. "That's the next step, and the second step is the appeal, of course. That'll give us time to see what the state of the Virginia law is with regard to a call to arms and inflammatories and morality and decency and all those things that I can remember. And we still don't know what the prosecution will try to do with the other movies; we're still in court on that one."
"But remember, we have one solid hardcore movie that they found not obscene, so of course, that obviously establishes something that hasn't been established before," Cambria pointed out. "And we're going to be altering the stock at this point accordingly, getting rid of movies with the multiple partners, until we get this sorted out. We're not done yet."
"But Lou and I had a good time," he added. "We weren't happy about splitting the baby here; it was just a hair-splitter; I don't get it."
"It was fun trying a case with Paul," Sirkin said. "It's been a while, and really, I complement him as a lawyer. I think we work very, very well together and I think we're a good team."