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Tackling Obscenity Cases

Tackling Obscenity Cases

September 13, 2007
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" The good news for Isaacs is that he will face that battle with a potent ally at his side "

Given the nature of the DVDs that serve as the basis of his obscenity indictment — DVDs that reportedly include depictions of scat and bestiality — it is fair to say that Los Angeles-based producer Ira Isaacs could be facing a tough battle in his federal obscenity trial, which began with his arraignment on Aug. 27.

The good news for Isaacs is that he will face that battle with a potent ally at his side — veteran Los Angeles-based attorney Roger Jon Diamond.

Diamond, who was admitted to the California State Bar in June 1967, litigated his first obscenity case in 1969. As one might guess, that case did not involve any fecal matter or animal sex.

"The indicted material was a pamphlet with a man and woman in bed, and the woman was partially covered by the blankets on the bed," Diamond told XBIZ. "I think she might have had one breast exposed. That's it — not even full frontal nudity."

These days, such a pamphlet likely could be reproduced on a 90-foot-high billboard on Sunset Boulevard in Hollywood, Calif., and not draw so much as a raised eyebrow. Back in 1969, however, the depiction was deemed by the authorities to be worthy of an obscenity prosecution.

In defending that case, Diamond found himself defending his client, Milt Persky, in front of a jury drawn from more socially conservative locations on the outskirts of what was then a much smaller Los Angeles area.

Persky sent his pamphlet, which advertised an 8mm adult film, all around the Los Angeles area, including to the Los Angeles Sheriff's Department, which is how Persky ended up being indicted in the first place, Diamond said.

Diamond made a motion to bring the jury to the Hollywood area for a tour of the businesses there, including adult stores, arguing that the jury should see first-hand what other kinds of adult materials were available in the community.

"I thought they should see for themselves the community for which they were being asked to determine the 'community standards,'" Diamond told XBIZ.

The judge granted Diamond's motion, and the jury got their tour of Hollywood, including stops at local adult shops. One look at the wide-eyed stares and other reactions from the jurors, and Diamond knew he had made his point.

The jury finally deliberated on June 14, 1971, and returned a not guilty verdict, making Diamond's first obscenity case one for the 'win' column.

Against All Odds
It wasn't the last time that Diamond faced seemingly long odds and tough, government-erected obstacles on his way to a favorable result for a client.

In another case, the Justice Department indicted Rick Nathan of Tao Productions in three separate jurisdictions: Buffalo, N.Y.; Little Rock, Ark.; and Salt Lake City, Utah.

"Not only are these very conservative areas, but they are also all in different appellate circuits," Diamond said. "They did this because they knew it would make it most difficult for us to defend the case."

After Diamond made a motion to dismiss the case, arguing unfair government conduct by indicting his client in multiple jurisdictions based on separate 'sting' operations, the government dropped two of the three indictments and left only the Buffalo indictment in place.

The challenges of the case were far from over, however, and Diamond said it was "no accident" that the government settled on Buffalo as the venue for its prosecution.

"The films in question were gay movies," Diamond said. "They clearly picked Buffalo because it was such a blue-collar town and I would have to try this case watching gay movies in front of a working-class jury."

Not one who is easily daunted, Diamond found a way to turn the government's strategy upside down. Diamond noted, among other things, that one of the jurors was an income tax protestor, and so he worked an anti-establishment angle into his defense of Nathan.

"I used it to my advantage and just turned the whole thing around," Diamond said. "I went to that jury and I told them 'They thought you were intolerant, bigoted people and that's why they wanted you to hear this case.' I asked them, 'Do you really just want to do their bidding? Are you just going to rubber stamp their decision?'"

Diamond's technique worked like a charm and his client walked away a free man.

Despite his successes outside of the Los Angeles area, Diamond said sometimes there's no place like home — especially when it comes to obscenity trials.

"I've tried obscenity cases in Florida, North Carolina, Buffalo, Iowa — all over the place," Diamond said. "No question, I'm glad [the Isaacs case] is in Los Angeles."

Asked whether he thought the Justice Department chose to prosecute the case in Los Angeles in order to send a message, Diamond responded with tongue in cheek: "Gosh — that would imply that the DOJ acts with political considerations in mind, and we all know that's not the case."

All kidding aside, Diamond said that it was difficult to say at this point why the government chose to indict Isaacs in Los Angeles.

"It's hard to say. I've had cases in the past where the government clearly was venue shopping," Diamond said. "Presumably this isn't one of them."

Diamond said that he has to give the government credit for at least one thing with respect to the Isaacs case; they have not chosen to make a spectacle of it, thus far.

"To the government's credit, they didn't play hardball" in entering the charges against Isaacs, Diamond said. "They didn't go out and arrest him, or try to make a big show out of it. In the old days, calling a press conference and marching people around in handcuffs was often part of the deal — at least they haven't done that here."


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