Hamilton County prosecutors sought to reinstate obscenity charges against Larry and Jimmy Flynt on Wednesday, arguing their case in front of the Ohio 1st District Court of Appeals.
The Cincinnati Enquirer reports that the members of the three-judge panel were skeptical of the merits of the prosecutor’s case.
"I'm having a hard time with this," Judge Mark Painter said. "If you dismiss a case, it's over. If this were proper, it seems to me you could have everybody in the county on super secret probation indefinitely."
Last June Hamilton County Prosecutor Mike Allen asked a judge to reinstate pandering obscenity charges against Hustler from 1999 that were dropped after a plea bargain. Allen says the Flynt brothers violated the terms of their plea bargains by continuing to sell sexually explicit videos in Hamilton County.
While the charges were originally filed against Jimmy and Larry Flynt, the charges were switched to Hustler per the plea bargain, meaning that technically Hustler signed a plea bargain - not the Flynts.
The Enquirer reports that Judge Ralph Winkler questioned the legality of charging someone for violating a plea bargain that they didn't sign.
After Elyse Metcalf beat obscenity charges in 2001 with some of the same videos that Hustler had been charged with obscenity for , the Hustler store, which Larry Flynt no longer owns any part of, began selling adult videos again. Now the Flynts contend that the "community standard" that determines what is obscene has changed in Hamilton County.
The Flynts' defense lawyers argue that the plea bargain is void anyway as it is unconstitutional to ban the Flynt's from selling material that is not obscene.
If that appeals court sides with the prosecutors, then the Flynts' will go on trial for the 1999 charges. If not, then Hamilton County will likely try to file new obscenity charges - the Hustler Hollywood in Cincinnati was raided last June to obtain evidence for a grand jury.