Trial began yesterday in Los Angeles Superior Court in the case of People v. Stephen Shoemaker and Stefan McDonald, with the defendants charged variously with trafficking obscenity, as well as possession and distribution of child pornography – but attorney Jeffrey Douglas, who represents defendant Shoemaker, promises that this will be one hell of a battle.
"When it's all over and the dust settles, it will be clear that the defendants have committed none of the offenses charged," Douglas told AVN.com. "This case has dragged on for five years now. The police have even attempted to get the federal authorities involved, but they refused, so what does that tell you?"
According to the opening statement by Assistant City Attorney Alan Honecutt, the case revolves around two Websites, beachbaby.com and blowout.com, both owned by Shoemaker and Webmastered by McDonald, which became the target of an investigation by the Los Angeles Police Department's (LAPD) Internet Child Exploitation Unit in mid to late 1998. The police began looking at the material on the sites, both of which are free to the public, and eventually began mirroring (copying) the material to the cops' own hard drive.
At issue are 14 photos alleged to be child pornography and 40 others alleged to be obscene, but during the testimony of the government's first witness, Det. Thomas Eskridge, the state's intention to win by any means possible became evident. In asking Eskridge to demonstrate for the jury how to navigate the Websites in question, Honecutt had the detective click on the various buttons on the home pages, showing the jury the different types of material available on the sites. When it came to the photo section, however, Eskridge opened several photos that had nothing to do with the case, and to which Douglas strenuously objected.
"A very significant ruling was that when the prosecution tried to prejudice the jury by showing them photographs that they chose not to charge as obscene, but were disturbing or offensive, and had plans to show dozens of those photographs, the judge precluded them from doing so," Douglas said. "He made a very clear ruling, and then the first thing that happened after that was that they disregarded the ruling and started showing thumbnail pages of similar non-charged material, so back we went to the judge, and for the first time in these many, many months of proceedings before this judge, the judge showed upset at the prosecutor because within seconds, he'd violated the judge's ruling. So that was an important ruling."
Det. Eskridge's testimony on Tuesday was simply to set the framework for the material charged, and he was scheduled to return to the witness stand today, but in order to accommodate one of the later witnesses, his testimony was interrupted, and the state called Dr. Carol Berkowitz to the witness stand.
Dr. Berkowitz, who is head of the Pediatric Service at Harbor-UCLA Medical Center and has been a board-certified pediatrician for 25 years, was called to give expert testimony as to the ages of the people depicted in the 14 photos alleged to be child porn. She testified that she had given similar testimony 8-10 times before, using the "Sexual Maturity Index" (SMI) (also known as the "Tanner Index") put out by the American Academy of Pediatrics. The SMI consists of a series of drawings and photographs which Dr. Berkowitz testified showed the five stages of sexual maturity of female breasts and pubic area.
Using the SMI, Dr. Berkowitz analyzed the 14 photographs charged, 12 of which were available to the public on beachbaby.com and two of which were in a private folder on the server, and testified that various females depicted therein appeared to range in age from as young as 9 or 10 years old, to some who might, in her opinion, be adults, with the majority being, she thought, approximately 13 or 14 years old.
On cross-examination by Douglas, however, Dr. Berkowitz admitted that she has no knowledge whether the photos in question have been altered, nor whether any of them accurately depicted a real person.
"Of the child pornography images," Douglas later said, "there are some that are clearly altered. There are others that show no genital exposure whatsoever, and the significance of that is, under Ashcroft v. Free Speech Coalition, the United States Supreme Court, by a 7-2 vote, ruled that child pornography can only be prosecuted outside the definition of obscenity if the [depicted] minors were sexually abused in the creation of the photograph. Therefore, a nudist photograph, one in which there is not an unnatural positioning of the genitals or something else that suggests the child was being sexually exploited by the photographer, cannot be criminally prosecuted as obscenity, and the vast majority of the photographs fall within that category."
Douglas also gave a rundown of how he expects the trial to proceed.
"There will be an agonizingly long period of the cops describing their investigation," Douglas predicted, "and a sort of 'computer tutorial for idiots' – these officers tend to talk down to juries – on the Websites that are the basis of the prosecution, and their searches and investigations and statements that were made to them during the course of the investigation by the two defendants.
"There will also be an expert, one of the founders of Pixar [Entertainment, producer of such animated feature films as Toy Story and Monsters, Inc.] who's going to come in and testify to a complete straw man. He's going to testify that in '98, there was no technological capacity to create, out of whole cloth, a realistic image of a human being. Of course, no one's alleging that," Douglass said.
"We're just saying that the images were cut and pasted, which is a whole different animal, and which ability was certainly available through Photoshop in '98 without any question. Then, on Friday morning, Park Dietz, a self-proclaimed expert on deviance, is going to testify apparently that people who would be sexually stimulated by photographs of bestiality, fist insertion, urination and defecation would be deviant. I don't know how that's relevant to anything at all, but it will be interesting. Dr. Dietz is an extremely controversial figure, and it will be interesting attacking his credibility."
The trial is expected to last at least through the middle of next week.
