In response to his recent conviction on obscenity charges, Dan Sasha Birman has pulled all of the videos from his Fantasy Video store, a precautionary tactic as waits for his sentencing, then his appeal.
Birman was convicted for selling undercover officers Ladies Club, a tape released by CDI, and Hustler's Barely Legal #16. He's facing a three-year sentence and up to $2,500 in fines.
He's currently out on stay, and his store that he runs with his twin brother is still open, selling novelties until the case runs its course.
Not that the fight is over. His defense team is headed by H. Louis Sirkin, who is prepared to take the case to Louisiana State Supreme Court, if necessary.
One basis of appeal will be question the grand jury's ability to declare the tapes obscene without having fully viewed them. The grand jury only sat for forty-five minutes before handing down an indictment.
"We attacked that and that's an issue that will be brought up on appeal. This case will certainly be appealed," Sirkin told AVN.com.
Sirkin also intends to argue that the concept of "substantive due process," a relatively modern interpretation of the fourteenth amendment that requires that the government cannot take a person's life, liberty or property without appropriate justification, applies to this case.
In Lawrence vs. Texas , the case decided earlier this year about the legality of homosexual sex, the United States Supreme Court decided that morality was not in and of itself a sufficient justification for arresting someone or fining them.
"Based upon some language in some of the cases in Louisiana over the years, I don't believe that the court will close its ears to that argument," Sirkin said.
As to how the conviction came about in the first place, Sirkin suggested that the Bible belt nature of Ruston, a small town with a population of 42,000 people, had something to do with it.
"All I can say to anybody is that there are people who say 'Well that's okay for me, but I don't want other people to see it,' because the amazing thing to me is that every person that was on this jury had indicated that they had seen hardcore material and indicated they had seen it at home," Sirkin said.
Although Sirkin had tried cases in the state before, he felt slightly handicapped by the nuanced differences presented by Louisiana state law, because Louisiana is the only state to have based their laws on Napoleonic code.
"The most significant [difference] is the fact that since it was a first offence there was no potential of what's called 'hard labor,'" Sirkin said. "So we were only entitled to a six-person jury. It still had to be unanimous. But it's much easier for them to convince six than to convince twelve. You enhance your chance of a hung jury when you have twelve members of a jury."
Still, Sirkin remains optimistic about winning the case during the appeal process.
"With Lawrence we may have a really good shot. I'm not discouraged, but it happens. I'm disappointed as hell, but I'm not worried," Sirkin said.
