Jennifer Duté, the notorious Hamilton County pornographer, was present in Judge Norbert Nadle's courtroom yesterday for the latest status hearing on her possible retrial on obscenity charges, but she barely got to see the judge.
"We didn't actually even get into the judge's chambers," said Allan Duté, Jennifer's husband, who accompanied his wife to court. "We were outside. The two attorneys went in, and I'm sure the prosecutor said they were going to retry the case. Jennifer refused to take a plea to a misdemeanor, and they know that their ass is on the line if they don't retry this case and try to get a conviction, because she's going to go after them for falsely arresting her."
The false arrest allegations stem from Sheriff Simon Leis' use of phony addresses to trick the Dutés into violating an earlier plea agreement not to sell their homemade tapes within Hamilton County. Leis managed to find a couple of addresses not listed on the county assessor's map and mounted a sting operation, which resulted in an obscenity conviction for Jennifer and an acquittal for Allan at a trial late last year. Jennifer spent seven months in jail and prison before the Ohio Court of Appeals overturned her conviction for errors committed by Judge Patrick Dinkelacker at the trial.
"When she was released on June 3 by order of the Court of Appeals, the case was sent back to the lower court, and we drew Judge Nadle," Allan Duté recounted. "As soon as she was out, she had to go before Nadle, and he schedules regular hearings to make sure that she is abiding by the court order, staying in town and all that. She does have travel restrictions. At the same time, the prosecutor's office appealed the Court of Appeals' decision to the Ohio Supreme Court, and we found out a couple of weeks ago that the Ohio Supreme Court refused to hear the case. So at this hearing, it was decided that things could go forward. So we're on that road to another trial."
Considering that Judge Dinkelacker had imposed the harshest sentence possible under the law, retrying Jennifer could be problematic for the prosecution, if for no other reason than that even if the jury convicts Duté a second time, she's already served more time in custody on these charges than a reasonable court would have imposed.
However, Judge Nadle is considered to be a highly political figure in judicial circles, having previously presided over such high-profile cases as the Pete Rose sports betting scandal. As senior judge, Nadle had reportedly tried to assign the recent Larry Flynt case to himself, but that action raised so many eyebrows that the judge allowed the case to reenter the trial pool — and who should Flynt draw but... Judge Dinkelacker!
(Flynt's lawyer, prominent First Amendment attorney H. Louis Sirkin, who also represents Duté, is expected to apply for a change of judges, probably on the basis that Judge Dinkelacker may be prejudiced against Sirkin for having won the Duté appeal.)
Judge Nadle set December 22 as Duté's next court date, at which time Sirkin will argue his motion that the case should be dismissed. Sirkin already has a dismissal motion before the Court of Appeals in the Shawn Jenkins case, which motion is based on the "substantive due process" concept embodied in the Supreme Court's decision in Lawrence v. Texas. It is not known whether Sirkin will use similar arguments in attempting to get the Duté case dismissed.
And as for Jennifer herself...
"I'm doing okay," said the spry blonde, who's currently 15 weeks pregnant with twins. "I would say I'm looking forward to this being over soon, but that's not going to happen."
Sirkin, however, has many legal irons in the fire, largely because Hamilton County is such a hotbed of censorship-based prosecutions, and any one of those pending cases may have an effect on Duté's case.
