It was a quick trial, lasting just five days from jury selection to the start of deliberations, but early this afternoon, Clarence Thomas Gartman and partner Brent Alan McDowell were found guilty of having shipped the video known as BVW 24, ordered from their website forbiddenvideos.com, across state lines.
Additionally, Gartman, too old to have been named after the Supreme Court justice, was convicted of one count of conspiracy to traffic in obscene material relating to BVW 24, which depicted no explicit sexual acts, although the subject of the feature was nipple piercing.
Both Gartman and McDowell were acquitted of having sold two other videos, identified as Rape Video 1 and Scat 4. Another defendant, Lou Santilena, was acquitted of all charges.
Rape Video 1, for which all defendants were acquitted, was the feature upon which Garry and Tamara Ragsdale, who had been partners of Gartman in the website, were convicted in late 2003, demonstrating once again the unconstitutional vagueness of the obscenity laws. Moreover, all defendants were found not guilty of selling Scat 4, which reportedly depicted explicit sexual acts as well as urination. The video on which Gartman and McDowell were convicted, BVW 24, had not been charged in the Ragsdale trial.
"Tom [Gartman] admits to 100% of the things laid out in the government's indictment, except for one thing: The word 'obscene'," attorney Andrew Chatham told the 12-member jury during opening arguments. "The judge gets to tell you what the law is, but you get to decide what the law means."
Apparently, that wasn't an easy task for the jury, since within 15 minutes of the start of deliberations, the jury sent a note to the judge asking for a copy of the text of the First Amendment. More surprising still, the judge in the case, Barefoot Sanders, who had presided over the CPLC/Video Team/Great Western Litho case 15 years earlier, agreed to give it to them; a rare occurrence in federal trials.
Courtroom observers reported that some jurors appeared openly hostile to the defendants, and that one woman cried during the showing of one of the videos at issue.
"They didn't want to talk to us," Chatham said of the jurors after the verdict had been delivered.
"I think they took a long hard look at the videos and said that two weren't obscene and one was, by the standards that they use," Chatham continued. "I think they listened to the lawyers, I think they listened to our arguments; I think they made a hard decision, and on the rape video, they acquitted."
Chatham has been very successful over the past few years in defending store clerks charged with violating state obscenity laws, obtaining acquittal after acquittal, to the point that the local police have virtually stopped making such arrests. So Gartman's conviction was both a puzzle and a letdown for Chatham.
"I don't know what to make of this verdict and what it means for the continued prosecutions of individuals," Chatham said, "because on the one hand, you can say that, well, there's this jury that determined that only one of the three [features] was obscene. I think that bodes well for the chances of similarly situated defendants who are charged with the selling of adult movies."
Chatham said that he will appeal his client's conviction.
"I think there should always be an appeal as a matter of course on any of these types of verdicts," Chatham opined. "I think it's always good for another lawyer to review what I've done, to make sure I didn't make any mistakes. I just think it's always good to have an appellate lawyer examine the trial as a whole, because as you're sitting there and it's happening, there could be any number of things you could miss, and so it's better to have someone else look at the record as a whole."
Clint Broden, McDowell's attorney, was even more optimistic.
"Short of a straight acquittal, I'm as happy as I can be," Broden stated, "because I think it's almost definite that the count he was convicted on will be reversed. There was a severance motion that was filed that was denied, that would have allowed one of the co-defendants to provide exculpatory evidence on that count. I also think it's questionable whether that movie – there were no sexual acts involved in the particular movie they were convicted of, so I have some questions whether that will hold up on appeal. I'm almost certain we'll succeed on that, and on the severance."
McDowell said he would have to do more research as to whether a feature that contained no explicit sexual acts would meet the Miller standard for obscenity.
"I think this verdict says, 'Well, wait a second'; juries are not going to simply accept what the government says as being obscene," Chatham said. "They obviously listened to our arguments; we just weren't able to convince them that the standard wasn't met on one of the movies. I'm encouraged from a worldwide perspective, but very disappointed on behalf of my client to have a conviction in the case."
Both Gartman and McDowell are free on bail while presentence reports are being prepared.
"They never even considered putting them inside," Chatham recounted. "The government didn't ask for detention, and I think the judge made it real clear that he wasn't going to detain them. It never came up. He never asked the government if they had a position; he just told them [Gartman and McDowell] when to report and what to do and all that, but he did not even entertain motions for detention."
"I just took a half-hour for lunch and now I'm writing my post-trial motions," Broden chuckled.
