Juror Talks to XBIZ About JM/Five Star Obscenity Case

Q Boyer
PHOENIX — A woman claiming to be a member of the jury for the JM Productions/Five Star Video obscenity case told XBIZ that the jury wrestled with how to accurately gauge the “community standard” of the Phoenix area, and that had the jury been presented with more evidence on the demand for similar content in the area, the verdict might have been different.

The woman, who declined to be identified by name, provided details indicating that her claim of being a juror in the case was legitimate. Among other details, her description of the instructions imparted to the jury by the judge match those given in the case, according to attorney Jeffrey Douglas, who represented Five Star co-owner Ken Graham in the case.

The woman told XBIZ that the “jury’s major problem in deciding the verdict was with the ‘community standards’ issue … specifically, how could we as 12 individuals guess what our fellow citizens would find obscene.”

“The nature of the material we were looking at is, for most people, something which would be kept as a very private concern and not something whereby we could necessarily know the honest views and habits of even some of our closest friends,” the juror said.

Had the defense been permitted to enter more evidence concerning the purchase and consumption of material similar to “Gag Factor 18” — the sole DVD at issue in the case that the jury found to be obscene — the outcome may have been different, she said.

“I think it would have definitely helped the defense’s case if we had been given more evidence of comparable material not only ‘available’ in the community but actually ‘consumed,’” the juror said. “We needed specific evidence of the demand for this type of movie.”

She added that the jurors “all conveyed surprise during deliberations that we had been given so little evidence of this nature, being unaware that the judge had disallowed much of the defense’s attempts to establish such facts.”

“As I understand it, the reason the judge threw out the evidence of similar content in the community was something along the lines that only showing the ‘presence’ of the material was insufficient; it also needed to show that a reasonable portion of the community was purchasing/viewing such content,” she said. “Indeed, in [the judge’s] instructions to us, we had to believe that there was a ‘demand’ for this type of material and not merely that the community ‘tolerated’ it.”

The woman indicated that some on the jury argued that the mere fact that Five Star had been in business and selling adult movies for six or seven years was indicative that there was reasonable demand for the product, but others in the jury countered that since the jury was only considering three particular movies, they could not conclude that the specific type of content depicted was in demand.

“We had no evidence that the bulk of the movies sold by Five Star and others were of the same nature as those that we were focusing on,” she said.

The woman said that the jury did not engage in much discussion of the fact that several defendants were dropped from the case, and noted that the jury did not know the precise reasons why those defendants were no longer involved.

“We were unsure whether the case against JM Productions and Mike Norton had been dismissed or some plea deal had been undertaken,” she said. “I think we felt the same way when the charges against Ken Graham and Chris Ankenny were dropped, although, as far as I recall, none of us voiced any opinions or speculated about how this affected the case.”

She attributed the lack of speculation to the fact that all the jurors were serving on a jury for the first time, and had “little experience of trials, lawyers or just how important each little detail of the proceedings is.”

“[I]n our defense, we quickly realized that we would be deliberating forever if we began discussing generalities,” she said. “We almost immediately focused our attentions on judging each indictment in accordance with the instructions we were given.”

Asked if the jury struggled with the ambiguity of the obscenity statute and the Miller test, the juror said “most definitely — the law itself is entirely too vague.”

She said that the judge stressed throughout the trial, the jury selection process and right through to the time that the jury was given its final instructions that “we were not allowed to judge the law but only the facts. If we felt the evidence showed guilt according to the law then we had to dismiss any doubts we had about the law itself.”

With respect to applying the Miller test, the juror said that the third prong of the test did not give the jury any trouble at all.

“I’m sorry if it offends anyone, but we quickly dismissed the third part; none of us wished to argue that the three movies we had watched had any ‘serious literary, artistic, political or scientific value,”’ the juror said, adding that the “first two parts caused us untold difficulty due to the ‘community standards’ issue.”

In addition to the difficulty of determining the standards of an entire community based on the opinions of 12 people, the juror said that some of the language of the Miller test itself was problematic for the jury.

“[W]e all had to go look up the definition of ‘prurient,’” she said. “Is this word ever even used outside of courtroom obscenity cases anymore?”

The juror said that the jury’s deliberations focused on two statements in their instructions from the judge. First, would the average person feel that the material appealed to people with an “unhealthy interest in sex, as distinguished from a mere candid interest in sex;” and second, if the average person would find the material “patently offensive,” meaning that it “exceeds the generally accepted limits of candor in the community so as to be clearly offensive.”

“We, in effect, graded the movies and agreed that ‘Gagfactor 18’ seemed, to us, to go beyond what most people would find acceptable, whilst ‘Filthy Things 6,’ and ‘American Bukkake 13’ were more standard, hardcore fare,” she said. “Some of the jurors would have probably drawn the line before ‘American Bukkake’ and possibly even include ‘Filthy Things,’ and felt that most people would find them obscene. However, eventually they agreed that they could not possibly say for sure that that was the case, hence the acquittal on those two titles.”

Regardless of whether the jury considered the DVDs in question to be legally obscene, the woman told XBIZ that the prevailing opinion among the jurors was that the entire case was a waste of government time and resources.

“It was a common sentiment that prosecuting obscenity crimes is a waste of time,” she said. “Overall, we were appalled that FBI resources were being used in this manner given the multitude of other more important tasks they could be undertaking.

“Also, they are prosecuting the distribution of material that is completely legal to watch in your own home. Even the jurors who found the movies horribly distasteful agreed that they didn't care if their neighbors were watching them. In order for the FBI to make a credible case for these prosecutions they need to prove definitively to us that they are in some way adversely affecting society at large.”