Apr 9, 2014 12:00 PM PDT    Text size: 

SANTA MONICA, Calif. — Fetish filmmaker Ira Isaacs has petitioned the 9th U.S. Circuit Court of Appeals to rehear his appeal over criminal convictions on obscenity charges.

Last month, a three-judge panel of the 9th Circuit dashed Isaacs hopes of a reversal over final judgment in his third trial over obscenity charges — two other earlier trials had been declared mistrials — when they affirmed convictions over the mail distribution of four scat and bestiality titles.

Isaacs, who has spent no time behind bars since the conviction in 2012, faces four years in prison if the appeal is not reheard by the 9th Circuit or, possibly, the U.S. Supreme Court.

Isaacs attorney Roger Jon Diamond, in a filing on Monday, petitioned the 9th Circuit to rehear the case — either the same three-judge panel or en banc (full court) — over arguments that the lower court erred because it excluded Isaacs proposed opinion testimony about "artistic value" and that Diamond's closing argument was substantially impaired by a combination of constant interruptions and objections by the government and by the sitting jusist, U.S. District Judge George King.

Diamond, in his petition, noted in his brief that courts should be more sensitive to criminal procedure in obscenity cases and that the appeals panel treated the Isaacs case "without the special care that the First Amendment requires."

"Not only does this case implicate the First Amendment and free speech, it also involves other constitutional issues including the right of a defendant to testify before a jury, the right to a jury trial, and the right to effective closing argument (effective counsel under the Sixth Amendment)," Diamond wrote in the petition.

Diamond said that it was Isaacs bad fate when his first trial ended up as a mistrial when the Los Angeles Times broke the story about Judge Alex Kozinski’s alleged prior porn website. Kozinski in the first trial concluded that Isaacs could testify as an expert on the artistic issues presented in the case.

"Isaacs defense attorney attempted to persuade Judge Kozinski that hehad donenothing wrong, that his privacy had been invaded, and that federal judges, like other citizens, should enjoy certain privacy rights," Diamond wrote."Isaacs himself told his attorney to agree to a delay until the following Monday when things could be sorted out.

"Little did Isaacs know, his agreement to accommodate Judge Kozinski would harm Isaacs and that Isaacs would lose the benefit of Judge Kozinski’s pretrial ruling that Isaacs could testify as an expert on the artistic issues presented by the case.

"Because Isaacs accommodated Judge Kozinski out of Isaacs’ concern for the well being of Judge Kozinski, Isaacs, a human being with no criminal record in his mid 60s, is facing four years in federal prison for distribution of allegedly obscene movies to consenting adults in a country that professes to provide freedom for its citizens."

With Isaacs being able to testify at the second trial and with his attorney being free to argue to the jury, the jury hung resulting in a second mistrial, Diamond wrote.

"Determined to pursue Mr. Isaacs as though he was an international terrorist, the government took him to trial a third time," Diamond wrote. "Judge King determined that he was not bound by Judge Kozinski’s ruling on the ability of Isaacs to testify as to his opinions. Judge King revisited the issue and determined that Isaacs would not be allowed to give his opinion regarding the movies. He would be precluded from testifying either as an expert or even giving his lay opinion."

Diamond also emphasized that the intimidation of Isaacs by the lower court judge extended to his closing argument.

"The record demonstrates that throughout the defense closing argument the government constantly interrupted with objections and derailed the defense’s closing argument," Diamond wrote. "Given the rulings and admonitions by the district court regarding Isaacs’ testimony, all the defense had was closing argument. Yet closing argument, which the Supreme Court has said is essential in criminal cases, was gutted constant interruptions. It did not help the defense to be criticized by the district judge during closing argument because the district court felt the defense attorney was fighting too hard for his client.

"Isaacs understands that are hearing is a long shot but somewhere in this wonderful country of ours we must have justice. Given the importance of the First Amendment it was essential that the district court and the three-judge panel consider the First Amendment aspect of the case.

"In refusing to do so both the district court and the panel erred."