The third time definitely wasn’t the charm for adult retailer Shawn Jenkins, who was convicted for selling an adult video, deemed to be obscene by a grand jury, to an undercover officer after two previous attempts to convict him had ended in mistrials. However, comments by the presiding judge on the case indicated that Jenkins’ case may have a silver lining.
Jenkins was convicted of pandering obscenity for selling an undercover officer Max Hardcore Extreme, Vol. 7. in 2001. Jenkins will be sentenced later this month; he could end up serving a year in jail, but federal sentencing guidelines suggest he’ll end up on probation.
The Cincinnati Post reports that in a closed session Common Pleas Court Judge Richard Niehaus, the presiding judge, acknowledged that this may be one of the last obscenity cases of its kind in light of recent Supreme Court rulings that acknowledged the rights of individuals in their own bedrooms.
According the Post, Niehaus was refferring to an Alabama case that ruled that it was illegal to sell adult novelties though it was legal to own them. The case in question is believed to be adult retailer Sheri William's successful attempt to have a 1998 Alabama state law that banned the sell of adult novelties overturned.
The Post erroneously states that the case went to the U.S. Supreme Court, but it never made it that far. William's case made it up to the Eleventh Circuit Court of Appeals, who kicked it back to the U.S. District Judge Lynwood Smith who had ruled that the Alabama state law was unconstitutional.
In fact, Jenkins’ defense lawyer, Lou Sirkin had already petitioned that obscenity charges against another of his clients, Jennifer Dute, be dismissed based on that same Alabama case.
Sirkin told the Post that he intended to appeal Jenkins’ case on those same grounds.
Jenkins, who owns Tip Top Magazines, the store where the video in question was purchsed, had his first trial end in a mistrial because the prosecutor refused to share information about previous obscenity cases where videos had been deemed not obscene.
The second mistrial was the result of a juror who slept through part of the video when it was played and because another juror averted her eyes frequently.
