Attorney: Mr. Marcus in Jail Due to Probation Violation

Dan Miller

LOS ANGELES — Mr. Marcus’ attorney Martin Cutler told XBIZ Wednesday that the reason the performer has been in jail since May 22 is because of a probation violation that occurred when he was arrested for DUI on May 9.

According to Cutler, that probation violation stems from a 2011 conviction for speeding. There was no second DUI arrest last month, Cutler said.

Mr. Marcus, the performer at the center of last year’s industry syphilis scare, was sentenced to 30 days in jail, 15 days of community service and three years of probation for knowingly exposing two co-stars to syphilis after testing positive for the disease and subsequently filming scenes, the L.A. City Attorney's office announced Tuesday.  

But his May 9 arrest for DUI complicated matters. 

“The City Attorney’s office then learned about that and they asked the court to revoke his [own recognizance release] from his DUI arrest. And the court ordered him to appear May 22 for the regular hearing that we had for the current case,” Cutler explained. “The court also ruled that DUI to be a probation violation. There was not a second DUI. What he was in jail for was a probation violation.”

Cutler said that they entered the “no contest” plea with the city solely in an effort to expedite the performer’s release from jail, where he remains at least for a few more days in lieu of $200,000 bail.

“They set bail extremely high,” Cutler continued. “In all my years of practice, I’ve never seen bail this high for this kind of misdemeanor offense. That’s the type of bail set for a serious felony. He could have committed vehicular manslaughter and there would’ve been bail lower than that. It’s really excessive. I think the city was really out to get him on this case.”

On July 13, 2012, Mr. Marcus received a penicillin shot after testing positive for syphilis. Following a second screening on July 21, he again tested positive for syphilis. The veteran performer, who has said that he believed based on his medical advice that he was not contagious, then admitted to obscuring the syphilis result on a photocopy of his test results.

On July 24 and July 26, Mr. Marcus participated in two porn shoots, and two female performers later filed a police complaint stating Mr. Marcus knowingly performed while being positive for syphilis.

“I really wanted to take this case to trial and so did he,” Cutler said. “He had a good defense. He waited the proper amount of time after receiving the penicillin shot, even what the Center for Disease Control’s website tells us. He was not contagious. The bottom line is none of these women who had sex with him contracted syphilis. In retrospect he made a mistake trying to cover it up, but the bottom line is he’s not guilty of the crimes he is charged with.”

Cutler said that he expected Mr. Marcus to be released within the next few days, and that based on his experience he’ll be given credit for “double” the amount of time that he has served. So he won’t have to go back to jail to complete any difference in the 30-day sentence. His next court date will be regarding his DUI arrest.

The attorney said that Mr. Marcus’ sentence with the City of LA would have no effect on his pending civil case involving performer Lylith Lavey, who alleged Mr. Marcus caused her emotional distress as a result of their sex scene for Bang Bros in late June 2012. Photos from that scene showing Mr. Marcus with what appeared to be lesions on his genitalia went viral. Lavey was not one of the performers named in the city’s lawsuit.

“That scene took place on June 25 of 2012 before he discovered he had syphilis,” Cutler said. “We still are in discovery with that case and it will be several months before that gets resolved.”

According to Cutler, “he pled no contest [with the city] and that cannot be used against you in a civil case.”

If Mr. Marcus would have not have pled “no contest,” the case would have proceeded to a jury trial. According to Frank Mateljan, the public information officer for the City Attorney’s Office, the maximum amount of time Mr. Marcus could have received if convicted of all the charges filed against him was one year.

“The charge he pled to carries a maximum sentence of six months in the county jail and a $1000 fine,” Mateljan said.

This ruling may have been the first of its kind for the city, according to Mateljan. “We are not certain, but as far as we know this may be the first time someone has been prosecuted under this code,” he said.

Cutler said Mr. Marcus would explore doing public service announcements about STDs to account for his 15 days of community labor.

“This whole thing was really a political case all related to Measure B and the dispute between the city and the adult industry over Measure B,” Cutler concluded. “The city was pointing to the matter as being the anomaly and the weakness within the adult industry testing system.”