Thursday, Feb 18, 2010    Text size: 

It’s not certain whether justices will take his forthcoming appeal, but Isaacs’ attorney asked a lower court on Tuesday not to send any pretrial proceedings relative to his retrial until the highest court in the country decides.

Obscenity Prosecution Task Force attorneys don’t oppose the request, Isaacs attorney Roger Jon Diamond told XBIZ on Thursday.

“You never know if the justices will take the case, but I’m upbeat,” Diamond said.

Diamond said that he’s been in contact with Justice Department attorney Bonnie Hannon, who also is the lead attorney in the Barry Goldman obscenity prosecution in New Jersey, and that he agreed on one caveat with the obscenity prosecution unit — Isaacs will waive his right to a speedy retrial, whether or not justices take the case.

Diamond noted that the extra time could be beneficial to Isaacs because the court currently is weighing Renico vs. Lett, No. 09-338, a nonobscenity-related double jeopardy case that has some similarity to Isaac’s case.

Isaacs has until May 3 to file a petition to the U.S. Supreme Court to request review.

Isaacs' obscenity case was put on hold last year after Judge Alex Kozinski recused himself after it was revealed that he used a website to distribute sexually explicit photos and videos.

Diamond contends that Isaacs shouldn’t be retried because there was no manifest necessity for the declaration of the mistrial, which was declared without Isaacs' consent, and that it would amount to double jeopardy, a procedural defense hat forbids a defendant from being tried twice for the same crime on the same set of facts.

“My argument has been that Kozinski prematurely called a mistrial, when they could have put in a new judge midway through the proceedings,” he said.

Earlier this month, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously denied Isaacs request for a rehearing en banc, or with the full 9th Circuit court.

In December, the 9th Circuit decided that the federal judge who earlier ruled in the case found Kozinski’s recusal proper and that Kozinski exercised “sound discretion” in declaring a mistrial because of “extraordinary circumstances.”

But Diamond said that the 9th Circuit’s unprolific four-page ruling in the Isaacs case was suspect.

“I think they decided that this would discourage review [by a challenge to the U.S. Supreme Court],” he said. “Also I think it was to not embarrass Kozinski because it was an unpublished decision and there were no discussion of the facts.”

Isaacs, who owns Stolen Cars Films and LA Media, faces multiple obscenity-related counts in connection with distribution via the mail the videos “Gang Bang Horse — ‘Pony Sex Game,’” “Mako’s First Time Scat,” “Hollywood Scat Amateurs No. 7” and “BAE 20.”

Federal prosecutors allege that the films are obscene and have no artistic merit. But Isaacs claims the films have both artistic and political value.