Late on Friday, August 6, a jury of nine women and three men found VIP Video owner Peter Tomaino and two clerks not guilty of pandering obscenity.
At issue were three tapes -Best of Freaks, Orgymania, and Sinderella She-Male - which the jury watched in their entirety and found that they did not offend the standards of Butler County, in which Hamilton is located.
"The standards of the community of Butler County is that you have the right to choose," said veteran First Amendment attorney H. Louis Sirkin, attorney for Tomaino.
Sirkin noted that Assistant Prosecuting Attorney Dan Gattermeyer was "really indoctrinated" by groups such as the pro-censorship Citizens for a Safe Community, which had picketed VIP Video for the previous few weekends, and several of whose members sat in the audience throughout the trial, staring at the jury as they watched and listened to the evidence.
"Of course, the pickets increased the volume of business probably 100%," Sirkin noted.
Jury selection began on August 3, during which Common Pleas Judge Keith Spaeth allowed each of the defendants - Tomaino and clerks Billie J. Doan and Caroletha Geter - four preemptory challenges, for a total of 12. However, "I don't even think we used all of ours," Sirkin said.
"I always ask how many people have viewed sexually explicit material, because I'm finding that modern days, it's almost unanimous," Sirkin recalled. "Then you go into, where did you see it? Did you watch it the whole way through? When asking one [potential] juror, she said that she had viewed a sexually explicit movie, and then, when we asked her whether she watched the whole movie, she said 'No.' And we said, 'Is there a particular reason why you didn't watch it through?', she said, 'Yeah. I was on my honeymoon.' At which point, she turned beet red, and the rest of the panel cracked up. It was a great moment."
Sirkin had hoped to show the jury several adult videos which had been the subject of a similar trial in Butler County the previous year, and which had led to an acquittal on pandering obscenity charges for two of this case's defendants, but the judge denied Sirkin's motion to that effect.
The prosecution's case consisted of the usual round of police witnesses, describing how they had obtained the tapes and what they found at the VIP Video location; then, on Wednesday, August 4, Gattermeyer played Orgymania and Best of Freaks for the jurors, urging them to watch the tapes all the way through and not to turn away. Sinderella She-Male was Thursday's bill of fare, but rather than see pre-op transsexuals, as might be expected from the tape's title, the jurors merely saw transvestites having sex with each other and with non-cross-dressed males.
The defense's only witness was Dr. Judith Seifer, a licensed sex therapist and a member of several prominent sexual study organizations, and who has consulted for such companies as Adam & Eve and the Sinclair Institute. She testified that the three adult videos in question indeed have scientific value, noting that by viewing a video like Orgymania, a couple could see what orgies were like without actually doing it themselves. She admitted under cross-examination, however, that such tapes might inspire couples to try the swinger scene.
Closing arguments were heard on August 6, with Sirkin clearly laying his client's philosophy out for the jury to consider.
"I began my closing argument," Sirkin told AVN, "with the following: 'I know it's been a long week but I think it is 1999 and this is still a free country, priding itself on an environment which encourages diversity, free choice and permits one to sexually fantasize.'
"I think that put the theme to the closing argument," he continued, "because it's one of the unusual times when I so openly talk about the idea that, look, let's face it: we're all grown up. We know people masturbate, and they're going to continue to masturbate. Because the whole approach [Gattermeyer] used in his closing argument was, there's no question that this material is obscene, that it appeals to the prurient interest. But what we were taking about was Orgymania, which is a Nina Hartley orgy amateur film, and making this big thing out of Best of Freaks, which is obviously fake appendages and things like that, so I'd have to say that the guy really has a hang-up."
The jury took a mere five hours to arrive at verdicts of not guilty on all counts.
"We're not giving up on this issue," said Gattermeyer, apparently referring to another obscenity trial, involving Tomaino's store in nearby Milville, which was scheduled to start two weeks later. "We think the standards of the community are different from the standards of this jury. The jury pool didn't reflect the values of Butler County."
What Gattermeyer failed to note, however, was that this was the third Butler County jury this year to come to the same conclusion.
"He's off his rocker," was Sirkin's terse reply to Gattermeyer's statement. "I mean, this is the third obscenity acquittal in Butler County over the last eight months. The score is 36-0, and he's going to try one last time, and it's a corporate defendant coming up next, and it will prove absolutely nothing."
