Jennifer Dute has dodged a one-year felony sentence, at least for the now. Her plight punctuates the fact that adult Webmasters indeed are what Supreme Court Justice Lewis Powell described as "engaged in the dicey business of marketing films subject to possible challenge". Marks v. United States, 430 U.S. 188, 195, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Jennifer's plight gives good reason to review the helter-skelter nature of obscenity prosecutions.
This case has been reported throughout its history in AVN. Recall that Jennifer's Website, JenDD.com, sold home-made "swingers" videos featuring Jennifer in action with multiple male partners of various races. Hamilton County, Ohio, where Cincinnati is located, charged her with two counts of obscenity - a felony in Ohio - for shipping her tapes there. She made a deal on that case, allowing a shell company to pay a $2,500 fine and agreeing to refrain from shipping any more videos to Hamilton County.
Evidently irked at the provincial attitude of Hamilton County Sheriff and notorious obscenity prosecutor Simon Leis, Jennifer registered the domain name SimonLeis.com, setting it up to automatically forward to Jennifer's adult site. A Leis deputy picked up on that, reporting it to his leader, who likely was not amused. In response, the Sheriff's Department set up a sting, ordering tapes from Jennifer to be shipped to a faux address that was, but appeared not to be, in Hamilton County.
Thirty-one-year-old Jennifer and her 61-year-old husband, Allen, were both charged with "pandering obscenity." After a trial, the jury agreed that Allen had nothing to do with the shipment (although he was the photographer), acquitting him.
As to Jennifer and the obscenity issue, there was a week of testimony. The defense called as a witness one Elyse Metcalf, the owner of a local video store. She was allowed to testify that she sold similar videos, but not allowed to show to the jury one of the videotapes that she sold, Gangland 17, a tape bearing remarkable similarity to the tapes forming the basis for Jennifer's prosecution, Jennifer 2, 3, 6, and 7. Metcalf also was not allowed to tell the jury that she had been charged with pandering obscenity for selling Gangland 17, or that the jury in her case had found the tape not obscene and, accordingly, acquitted Metcalf. It seemed clear error for the judge to refuse this testimony based upon a prosecution of Hustler magazine over 20 years earlier. The jury deliberated some seven hours, finally convicting Jennifer.
The judge first sentenced Jennifer to four years in prison, but later took pity upon her because of her one-year-old son and reduced the sentence to one year. The sentence included an order essentially dismantling Jennifer's business and transferring SimonLeis.com to the Hamilton County Sheriff's Department, where it now is the functional equivalent of a political advertisement, boasting of the accomplishments of Sheriff Leis.
With such a dramatic issue on appeal, a relatively short sentence, and a defendant with no apparent flight risk, one would assume that Jennifer would have been granted bail pending appeal. Nope! Jennifer went out the back door of the courtroom in handcuffs, sitting in jail for over seven months - until recently, when her appeal was reversed by the Ohio Court of Appeals. State v. Dute, No. C-020709, 2003 WL 21242199 (Ohio App. [1st Dist.], May 30, 2003).
Simon Leis does not give up easily. The reversal of Jennifer's conviction was a 2-1 decision, the dissent voting to uphold the conviction. Thus, the prosecution has vowed to bring the case to the Ohio Supreme Court and vindicate the trial judge, sending Jennifer back to do the last four-plus months of her sentence.
In any event, Jennifer is not out of the woods yet. The Court of Appeals did not throw out her conviction; rather, it remanded for another trial, ordering the judge next time to allow the evidence about Gangland 17, including showing it to the jury. That assumes that neither the Ohio nor United States Supreme Court intervenes.
Jennifer's case and Elyse Metcalf's case punctuate Justice Powell's description of theirs as a "dicey business." Now, you might think that things like this never take place, two juries arriving at different results in nearly identical obscenity cases. Not so. In fact, it has taken place many times over the years. And that is not to mention the countless unprosecuted shipments of comparable materials to Hamilton County from an equally countless number of sources, and the relative infinity of Websites on which comparable materials are available and viewed in Hamilton County.
Keeping a low profile helps. Jennifer's SimonLeis.com was hardly that. Recognizing that operating a successful retail business is inconsistent with a low profile, putting it in the Sheriff's face - especially this sheriff - was not the best idea.
Expect many more Jennifers. Clearly, the Department of Justice is on the warpath against adult content and those who dare to defy General Ashcroft's deeply held right-wing religious beliefs. Jennifer would have faced an 18-24 month sentence had she been convicted in federal court. More of that conversation is sure to come.
Clyde DeWitt is a partner in the Los Angeles, CA-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
