Diamond is asking the high court to review Isaac’s case on the basis of double jeopardy, a procedural defense that forbids a defendant from being tried twice for the same crime on the same set of facts.
“Once the first jury trial began, we were in the middle of a trial," Diamond told XBIZ. "Ira had the right to have his trial concluded. He has a right not to stand trial a second time."
Diamond said if the court decides not to review the case, Isaac’s obscenity trial will start again. If the court does decide to review the case, the judges could either rule to have the case thrown out entirely or affirm the ruling of the 9th U.S. Circuit Court of Appeal, which was to allow a re-trial.
“I’m torn,” Isaacs told XBIZ. “One part of me would like to win and walk away but the other part of me wants my day in court. I’m looking forward to going on trial and if I win, it’s a great victory for the 1st Amendment. If I lose, I’ll go to jail, but at least I said my peace.”
Isaacs said that the point of the 1st Amendment is to protect unpopular speech, not popular speech.
“This attack by the moral American religious fanatics is outrageous. It’s a witch hunt. I’m being indicted for moral crimes. We are all willing adults,” he said.
Isaacs added the government is saying Americans have freedom of speech, but with limits. “If you have freedom of speech with limits, that’s not freedom of speech. I’m fighting for the 1st Amendment. I’m not a murderer, or a child molestor and I haven’t stolen any money. I’m an artist whose artistic theme has scientific, artistic and political value.”
Isaacs' obscenity case was put on hold last year after U.S. District Judge Alex Kozinski recused himself after it was revealed that he used a website to distribute sexually explicit photos and videos.
“The judge should not have declared a mistrial. He should have let another judge step in,” Isaacs said.
The U.S. Supreme Court receives nearly 6,000 petitions a year and only reviews about 80 cases. Diamond remains hopeful that Isaac’s case will be heard.
“I have a strong feeling that this is the kind of case they’d want to review,” Diamond said.